Complainant

Respondent

Parties

Maurice  Osei

Paul Babarinde T/A Tobby Foods.

Representatives

  Self-represented

 Lavelle Partners

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00040672-001

29/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00040672-003

29/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00040672-004

29/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00040672-005

29/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00040672-006

29/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00040674-001

29/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00040674-003

29/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00040674-004

29/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00040674-005

29/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00040674-006

29/10/2020

The complainant has submitted five complaints to the WRC.

 She commenced employment as a general manager of the respondent’s food shop on 13 May 2016 and remained there until her dismissal on the 2 May 2020.

She earned €60 for working thirteen hours a week.

She submitted her complaints to the WRC on 29 October 2020.

Preliminary point number 1.

Incorrect respondent.

The complainant has named an incorrect respondent. The correct respondent as per CRO document is Paul Babarinde trading as Tobby Foods. The respondent’s solicitor contends that the five complaints should be dismissed.

Preliminary point number 2.

The complainant is not an employee of the respondent. She volunteered to work with the respondent. She was not paid a salary but was given the weekly sum of €60 in expenses.

The complainant approached the respondent in May 2016 asking for an opportunity to volunteer in the shop, stating that she wanted to gain experience in the retail sector. The respondent was very clear in advising her that as the shop was a newly established family business, he could not afford to take on a member of staff.  The complainant, nonetheless, insisted in volunteering without any form of compensation and the respondent consented.

There was no written or oral contract between the parties. The respondent had no control over her hours of attendance; she determined these. When she did attend it was for 3 hours per day and not the 6.5 hours as claimed on her complaint form. There were many weeks when she did not attend at all. The complainant was free to turn up or not and was not rostered and in general came to the shop for 2-3 hours on Fridays and Saturdays. The complainant has described herself as the general manager of the store which is completely refuted by the respondent. She had neither a title or a particular role to carry out.

 The complainant went to Ghana in 2016 for 6 weeks, to China in 2017 for four weeks, and was away from the shop in 2018 for a number of weeks owing to the death of her father-in -law. None of these absences were applied for.

There was no mutuality of obligation.

Witness 1: The owner.

Mr Paul Babarinde runs a small shop with his wife and son, specialising in African and Asian produce.

The complainant lived close and was a customer. In April 2016 she came and said that she would like to help in the shop. The arrangement which he had with the complainant was that when he arrived in the shop at 12 midday, she was free to go. When he told her that she could leave and go home, she would often reply that she did not want to go home. She often spent time chatting to her compatriots. When she could not come in, there was no problem. He gave her the keys to open the shop because he lives far away, and he trusted her and considered her to be a family friend. She did not manage the finance or attend the bank to make deposits as claimed by her. The respondent disputes her claims that she ordered goods, did stock inventories or recruited staff.

Paying her €60 was the complainant’s idea. She stated that she did not need more due to her family finances.

Contrary to her statement, she never stated to the respondent at any stage between 2016-2020 that her pay was below the minimum wage.

Cross examination of the respondent.

The respondent accepted that the complainant had given the name of some Ghanaian boys to help him unload the truck but otherwise and contrary to what she is claiming, she had no role in the recruitment of staff.

When asked about her engagement with suppliers, the witness stated that he asked her to pay, for example, the bakery for their deliveries if absent at the time.

He denied that the complainant had any role in unpacking goods for Monday. He does not work on Sundays.

The witness in response to a question from the adjudicator stated that he agreed the sum of €60 due to the hours she attended in the shop.

He confirmed that there was no lunch venue near his shop.

Legal Authorities

The respondent’s solicitor argues that there must be mutuality of obligation before a contract could be said to exist between the complainant and the respondent and none existed in this case.

She referred to Brightwater Selection (Ireland) Ltd v Minister for Social and Family Affairs (2011), IEHC 510 where Gilligan J stated

“Mutuality of obligation exists where there is an obligation on a body to provide work to an individual, and a corresponding obligation on the individual to perform the work.”

That did not arise in the instant case.

The respondent’s solicitor also relies on the Minister for Agriculture v Barry (2009),1 IR 21, where Edwards J stated,

“Accordingly, the mutuality of obligation test provides an important filter. Where one party to a work relationship contends that that relationship amounts to a contract of service, it is appropriate that the court or tribunal seized of that issue should in the first instance examine the relationship in question to determine if mutuality of obligation is a feature of it. If there is no mutuality of obligation, it is not necessary to go further. Whatever the relationship is, it cannot amount to a contract of service. However, if mutuality of obligation is found to exist the mere fact of its existence is not, of itself, determinative of the nature of the relationship and it is necessary to examine the relationship further”.

There was no obligation on the complainant to do any work. She could leave if she chose.

The oral agreement expressly provided that that it was not a contract of employment and that she was a volunteer. She did not receive (and had no entitlement) to holiday pay, sick pay etc.

The adjudicator, therefore, does not have jurisdiction to hear the complaints submitted to the WRC on 29 October 2020. 

1.Incorrectly named respondent.

The complainant understood that she had identified the correct respondent.

2.The Complainant is not an employee.

Witness 2: The complainant.

Employee status.

The complainant states that she held the position of general manager in the respondent’s shop. She had previously worked there gaining work experience while studying in 2013. She was not a volunteer.

The respondent telephoned the complainant in April / May 2016 and asked her to return to work in his shop as things were not good. He didn’t specify any payment. She was working in a residential addiction facility, working Monday – Friday. The respondent asked her if she could work outside of those hours on a part-time basis. Accordingly, the complainant changed her shift to work nights in the facility (10pm- 8am), 3 nights on, four nights off on alternate weeks. She undertook to work each Friday and Saturday in the respondent’s shop. She was paid €60 for these two 6.5-hour days.  The respondent gave her the keys to the shop in 2016.

The complainant states that she told the respondent in 2016 that he was paying her less than the minimum wage and he replied that he would pay the complainant the correct rates when “things improve”. He told her the start time was 10.00. He did not specify a finishing time. Sometimes she worked from 10.00 to 3.30, or 10-4.30 or 10 to 5 pm or 10- 6pm.

In support of her argument that she was an employee, she states that she had general control of the shop. She had keys to the shop, she opened the shop. She recruited staff. She explained the health and safety rules to staff. She sent money transfers on behalf of customers to their families in Africa.

As evidence that she was an employee, the complainant states that the respondent’s wife told her that she was dismissed on 2 May 2020.

On the 2nd of October 2020 she submitted written correspondence to Paul Babarinde and Elizabeth Oluwatoyin Babarinde trading as Tobby Foods highlighting the issues in employment and further requested a written statement of her average hourly rate of pay for all periods during her employment, pursuant of Section 23 of the National Minimum Wage Act 2000. She did not receive the requested information.

She submitted a complaint form to the WRC on the 29th of October 2020.

Cross examination

When asked why she did not leave after failing to secure the minimum wage, she stated that she did not know about the minimum wage in 2016.The respondent’s solicitor pointed out to her that this contradicted her earlier evidence that she had asked for the minimum wage in 2016 and 2017 to which the complainant replied that she was not a volunteer.

Witness 3. The complainant’s partner.

The witness confirmed that the complainant worked every Saturday and Sunday. She returned to their home at home at around 4 or sometimes 5pm. He believes that she was an employee. She was at the respondent’s beck and call. She was not a volunteer.

Witness 4: Customer A.

She frequently saw the complainant leave the shop between 3.30 – 4pm. She used to have lunch with the complainant from 2-30 – 3.30 pm.

On one occasion she went to the shop to look for the complainant and the respondent’s wife told her that the complainant had been dismissed. She can recall that it was Saturday but cannot remember the date or month.

1.Incorrect respondent.

The complaint form submitted to the WRC on 29 October 2020 containing the five complaints named the respondent as Tobbys Foods, T/A Tobbys Food Enterprises. The respondent argues that as the complaint has been brought against an entity that does not exist, the complaint must be dismissed.

The matter of correcting the respondent’s name was addressed in Auto Direct Ltd v Vasile Mateui, DWT1922. While the circumstances of the instant case differ somewhat to those pertaining in the appeal before the Labour Court, what they have in common are the following elements which were set out in DWT 1922:

“. That party (the respondent) was fully aware of the Complainant’s complaints to the WRC. He knew precisely from whom the complaints were and to what the complaints referred. The respondent party has had a full opportunity to be heard and to answer those complaints. The Court is therefore equally satisfied that the employer will suffer no prejudice or injustice by its decision on this preliminary matter……. In arriving at this conclusion, the Court is also conscious of the High Court Judgment in O’Higgins -v- University College Dublin & Another (2013) 21 MCA wherein Mr Justice Hogan held:

‘“Even if the wrong party was, in fact, so named, no prejudice whatever was caused by reason of that error (if, indeed, error it be)”’….

 “In these circumstances, for this Court to hold that the appeal was rendered void by reason of such a technical error would amount to a grossly disproportionate response and deprive the appellant of the substance of her constitutional right of access to the courts.”

The Court agreed to the amendment of the respondent’s name.

In the instant case the respondent accepted that they were on notice of and apprised of the complaint.

Without prejudice to the respondent’s contention that they are not the complainant’s employer, I decide to correct the name of the respondent to reflect its correct legal title based on the absence of prejudice to the respondent and based on the aforementioned authorities. The corrected name is included in the decision.

Preliminary Point 2.

Was the complainant an employee, employed on a contract of service and eligible to engage the jurisdiction of the WRC?

 The respondent maintains that I do not have jurisdiction to adjudicate on the complaints as the complainant was not an employee.

The complainant has lodged complaints under the National Minimum Wage Act, 2000, the Organisation of Working Time Act, 1997, The Terms of Employment (Information) Act 1994, the Unfair Dismissals Act, 1977, and the Payment of Wages Act 1991. All of these statutes confine jurisdiction to employees engaged on a contract of employment and whose contracts conform to the definitions found in the five statutes. These definitions all encompass a requirement that the employee has agreed to perform work or a service for another person. The contract can be express or implied and, if express, may or may not be in writing.

The arrangement between the parties.

It is accepted that there was no written contract between the parties.

It is accepted that the complainant worked on the premises on Fridays and Saturdays tending to customers and working at the till.

It is accepted that the respondent paid her €60 a week; the number of hours worked are in dispute.

It is denied that there was an oral contract between the parties.

In the absence of a written contract and in the context of the respondent’s denial of the existence of an oral contract or of any intention to create legal relations, I must look at the evidence submitted to support the contrary claims in the light of established precedents.

How the complainant took up the job is contested with the complainant stating that the respondent contacted her to take up the job and the respondent claiming the reverse.

Case law provides guidance as to how to uncover the true status of the employer- employee relationship, an analysis frequently focussed on distinguishing between a contract of service and a contract for service. While the respondent has asked that I accept the complainant’s status was that of a volunteer and did not ask that I decide between the two, aforementioned contracts, case law illustrates the characteristics present in a contract of service which is the class of contract necessary for the complainant to trigger the jurisdiction of the WRC. In Henry Denny & Sons v Minister for Social Welfare (1997) IESC 9, a case concerning a demonstrator of that respondent’s foods in a supermarket, the court held:

“it is accordingly the case that while each case will be decided on its own facts, in general a person will be regarded as providing his or her services under a contract of service and not a contract of service where he / she is performing   the work for another person and not for himself or herself. The degree of control, though a factor is not decisive”

The court found that the demonstrator was an employee.

In the other leading decision on the nature of the employment relationship, Edwards J in Minister for Agriculture and Food v Barry, 2008, IEHC 216 identified the features to be found in a contract of service. He concluded that general principles such as ‘enterprise,’ control’,’ integration’ and ‘mutuality of obligation ‘constitute a useful filter or checklist to determine the nature of the employer – employee contract or arrangement but that it is not an exhaustive checklist. This judgement went on to state

 “when one party to a work relationship contends that that relationship amounts to a contract of service, it is appropriate that the court or tribunal seized of the issue should in the first instance examine the relationship in question to determine if mutuality of obligation is a feature of it”.

Applying the above decisions to the instant case, it is clear that there was an arrangement in place where the complainant was performing work not for herself but for the respondent. The level of control exercised by the respondent was minimal. I find that the complainant was integrated into the business which was the sale of produce to customers; it was the essential purpose of the shop.

The fact that the complainant had a permanent job elsewhere and could easily have left the respondent’s employment does not bolster her claim that she was an employee.  Conversely, this fact could indicate that she was unlikely to take up a position as a volunteer.

 It was an extraordinarily loose arrangement, devoid of many of the characteristics of an employee – employer relationship, and, coupled with the near complete conflict of evidence, escapes easy classification. But what tips me in favour of deciding that the complainant was an employee engaged on a contract of service  is the mutuality of obligation evident in the respondent’s reliance on her to open the shop-sometimes outside of her standard hours, her compliance with same, her agreement to provide her labour to the respondent, the respondent’s reliance on and trust in her  to manage the shop, alone, for three hours until he or a family member came to relieve her, her possession of the keys to the shop, together with the  payment to her of €60.

 The respondent never advised her that her labour was not required and relied upon her attendance with the exception of the times when she was abroad.

On the basis of the evidence tendered when set against the authorities, I find that the complainant was employed on an implied contract of service. I find that I have jurisdiction to hear the complaints submitted to the WRC.

I will now proceed to hear the substantive complaints.

CA-00040672-001.Complaint under the National Minimum Wage Act ,2000.

The complainant states that the respondent contravened the Act by not paying her the statutory minimum wage for the thirteen hours which she worked each week during the period 13 May 2016 – 2 May 2020.

Complainant’s evidence.

The complainant stated that she worked a minimum of 13 hours a week, 52 weeks a year, and not the six hours as alleged by the respondent. The complainant states that she sometimes worked from 10-4.30 or 10 - 5 pm por 10- 6pm. She was paid €60 for the 13 hours worked over Fridays and Saturdays.

Working hours.

Given that the hours which the complainant worked, and the consequential sum owed to her are contested, the complainant had two witnesses submit evidence as to her working hours.

Witness 4: Customer A.

The witness stated that she saw that the complainant usually left the shop between 3.30 and 4.pm.The same witness stated that she cooked and bought lunches for the complainant which they would take between 2.30 and 3pm.

Witness 5: Customer B

She saw the complainant in the shop between 10-12 and 2-3pm

Redress owed to the complainant.

The complainant’s written submission states that that she is owed the following amounts for the entire period of her employment:

€1768.50 for the period May – December 2016 (based on a minimum wage of €9.15 an hour x 13 hours x 30 weeks);

€3133, for the period January- December 2017 (based on a minimum wage of €9.25 an hour x 13 x 52 weeks;

€3335.80, for the period January – December 2018 (based on a minimum wage of €9.55 an hour x 13 x 52 weeks);

€3504, for the period January – December 2019 (based on a minimum wage of €9.80 an hour x 13 x 52 weeks);

€1212, for the period January – May 2020 (based on a minimum wage of €10.10 an hour x 13 x 17 weeks).

The complainant states that the total due in redress is €13,990.50

CA-00040672-002. Complaint under section 27 of the Organisation of Working Time Act, 1997.

The complainant maintains that she never received any holiday pay. In accordance with section 19 (1) (c) of the Act, she is seeking 8% of the 13 hours worked over 203 weeks for the period May 2016 – to 2 May 2020. She submits that 8% of 203 hours worked at the various minimum wage rates for the period 13 May 2016 – 2 May 2020 amounts to €1036.

CA-00040672-003. Complaint under section 7 of the Terms of Employment (Information) Act, 1994.

The complainant states that despite asking for terms and conditions of employment, she never received same.

CA-00040672-004. Complaint under Section 8 of the Unfair Dismissals Act, 1977.

The dismissal is contested.

Date of dismissal.

The complainant first stated that the dismissal occurred on the 2 May 2020. At a later point in the hearing she stated that the dismissal occurred on the 20 May when the workplace became intolerable for her.

The complainant’s evidence is that around 4.30 pm on the 2 May, the respondent stated to the complainant, within earshot of customers, that his wife had told him that CCTV footage showed the complainant taking money out of the till in the shop. The complainant went outside the shop whereupon the respondent’s wife confronted her stating that the camera showed the complainant taking money from the till. She explained to the respondent and his wife that as Covid 19 was widespread at the time, some customers did not like coming into the shop, would pay for goods outside and she would take their money to the till and return the change outside to the waiting customer.

Also, customers often wished to send money transfers to relatives in Africa and she would take this money. One customer, Sam, had asked the complainant to make a money transfer in US dollars, but had only given her €100 which was an insufficient amount for the amount of dollars which he had specified for the transfer. Not having enough for the transfer, she held the money back. The respondent’s wife stated that the complainant could not work in the shop any longer. Mrs Babarinde said, “you are dismissed.”

On the following Monday, 4 May, Sam came looking for the money and the respondent told him that the complainant no longer worked in the shop. She returned the money on 4 May to the customer.

The respondent told customers from Monday 4 May onward that the complainant no longer worked in the shop. The respondent showed a video of the complainant taking money from the till to customers. On 9 May the complaint and a friend of the respondent’s family returned the keys. The respondent said that he could no longer work with the complainant.

Cross examination of the complainant.

 It was put to the complainant that she had not been dismissed, that the respondent had made many efforts to organise a meeting with her and that the witness will state that she refused to engage with him. The complainant then stated in evidence that he made her working life intolerable and that after 20 May she could no longer work there.

When the complainant went to the shop in June and July the respondent told her to get out of the shop, that she was a “thief.”

Witness 4 Customer A.

The witness states that the respondent’s wife told her in the presence of the complainant that she was dismissed. She cannot remember the date or month. She returned to the shop with the complainant and gave the shop keys to the respondent; she cannot remember the date.

In cross examination it was put to this witness that on the 9 May, the respondent asked the complainant in the presence of this witness and witness 7, customer D, to come back and discuss matters. The witness said that she could not recall this invitation.

 Witness 6, Customer C.

Witness stated that the respondent showed her a video on his phone of the complainant picking up an indeterminate object. The respondent told the witness that the complainant was stealing from him. She cannot remember the date or month when this was said to her.

CA-00040672-005.Complaint under section 6 of the Payment of Wages Act, 1991.

The complainant states that she was not paid any notice prior to her dismissal

CA-00040672-001.Complaint under the National Minimum Wage Act ,2000.

The respondent did not pay the complaint the minimum wage as she was not an employee.

Evidence of respondent owner.

He gave the complainant the sum of €60 for expenses.

Working Hours

The respondent denies that the complainant worked thirteen hours per week; she worked six hours generally on a Friday and Saturday. The trading hours were 10.00 to 20.00. Both he and his wife worked there Monday –Friday. On Friday and Saturdays, the complainant opened the shop and worked there for a few hours on her own. After 12.00 either the respondent or his wife or son tended to the shop. He had one other employee, K, who worked three days and occasionally worked with the complainant.

The respondent’s solicitor made the case that while the respondent denies that the complainant is an employee, should the adjudicator find that she is an employee, the amounts claimed by the respondent are overstated. She worked 6 hours a week for the years 2016-2020.

For 2016, 2017, 2018, 2019 the sum of €60 for 6 hours exceeded the minimum wage. She is therefore not entitled to any redress for these years. Furthermore, the complainant was away for 4 weeks in 2017 and in 2018. She took time out on other occasions.

The minimum wage increased to €10.10 in January 2020. The complainant worked for 6 hours per week for 17 weeks. The respondent states that the difference between the minimum wage of €10.10 an hour and the €60 paid to her for the 6 hours a week for seventeen weeks amounts to €10.20.

CA-00040672-002. Complaint under section 27 of the Organisation of Working Time Act, 1997.

The complainant was not an employee and was therefore not entitled to any holiday pay.

Without prejudice to the respondent’s submission that the complainant is not an employee, should the adjudicator decide that the complainant is an employee, the respondent points to section 41(6) of the Workplace Relations Act, 2015. The complainant submitted her complaint on the 29 October 2020, so the referable period is 1 April 2020 to May 2020. Based on her hours of six per week, and an attendance for each of the 17 weeks which fell between 1 April – 2 May 2020, she would be entitled to 8% of €330 which is €26.40 (based on 5.5 weeks by €60 per week).

CA-00040672-003. Complaint under section 7 of the Terms of Employment (Information) Act, 1994

Without prejudice to the respondent’s position that the complainant is not an employee, and should the adjudicator find that she is an employee, the respondent states that regard should be had to the fact that the complainant never on any occasion raised the matter of her terms and conditions with the respondent. This was because she knew that she was not an employee. This consideration should be factored into any award which the adjudicator may be disposed to make.

CA-00040672-004. Complaint under Section 8 of the Unfair Dismissals Act, 1977.

 The respondent stated that he did not dismiss the complainant. The complainant left of her own volition.

He called her on Friday 1 May to tell that money was missing from the till and asked her did she know anything about it to which she replied, no. The following day, he showed her the video revealing her taking money out of the till.

She left the shop on the 2 May. She did not return to help in the shop. On 9 May, she returned with witness 4, customer A, and witness 7, customer D ( a family friend of the respondent) to apologise and return the keys of the shop. The respondent told her on that date that he was very disappointed at her behaviour, had suffered sleeplessness and asked her to explain why she took money. He had considered her to be a family friend.

The respondent submitted WhatsApp messages dated 8 and 9 May 2020 referring to previous calls aimed at arranging a meeting with the complainant. The complainant responded on the 14 May to say that she was very busy and would try and call him. The complainant did not make or return any of his calls. The respondent knew that she would not be coming back when he received a copy of the WRC complaint form in October 2020.

The witness stated that initially he wanted to go the Gardai about the missing money but desisted. He ultimately did report the matter to the Clondalkin Gardai station in October 2020.

Witness 7, Customer D.  

The witness knows the complainant from the shop and believed that she had enjoyed a good relationship with the respondent. Her husband and the complainant are fellow-Ghanaians. She stated that the complainant called to her on Tuesday 5 May in a very upset state to say that the respondent had accused her of stealing and had shown her video footage which shows her taking money out of the till and putting it into her mobile phone cover. The complainant told the witness that she had taken the money out of the till and was holding it for Sam- the man who had asked her to make a money transfer but had given insufficient money to make the transfer.

The next day the witness went to the shop, asked the respondent to show her the video, viewed it and saw the complainant taking paper money from the till and pitting it into a mobile phone cover.

On the 9 May the witness, the complainant and the complainant’s friend, witness 4, went to the respondent to apologise to him. The respondent asked the complainant why she had taken money; he said to the complainant,” I trusted you”.

Witness 7 stated that the complainant refused to permit witness 4, in attendance on the 9 May, to view the video saying that witness 4 did not need to see it. The respondent said to the complainant on the 9 May that if she is not ready to work with us, she should return the keys. The witness stated that the respondent did not dismiss the complainant at this meeting or use words to that effect.

In cross examination, the witness stated that the complainant had not apologised at this meeting to the respondent. No decisions were made at this meeting.

CA-00040672-005.Complaint under section 6 of the Payment of Wages Act, 1991.

The respondent maintains that no entitlement arises under the Act of 1991 as the complainant was not dismissed.

CA-00040672-001.Complaint under the National Minimum Wage Act ,2000.

I have found that the complainant is an employee. She is therefore entitled to enjoy the protection of the Act of 2000. It is accepted that she was paid the sum of €60 a week.

The hours which the complainant worked are disputed.

Relevant legal requirements.

I find that the complainant satisfied the requirement set out in section 23 and 24 of the Act of 2000 which are necessary to activate the protection of the Act. On 2 October 2020 she requested a statement from the respondent regarding average hourly rate of pay and requesting payment of the minimum wage.

The respondent replied on 21 October to state that she was not an employee and did not provide the requested information.

Cognisable period for redress.

Both the complainant and the respondent in their submissions identified the entire period of employment (2016-2020) as the referable period in so far as they used these years to calculate what might be owed to the complainant.

The National Minimum Wage Act 2000 comes within the scope of schedule 5 of the Workplace Relations Act 2015.  Section 41(7) of the Act of 2015 states

“subject to subsection (8), an adjudication officer shall not entertain a dispute referred to him or her under this section if—

(d) in the case of a dispute relating to the entitlement of an employee under the National Minimum Wage Act 2000, it has been referred to the Director General after the expiration of the period of 6 months beginning on—

                             (i) the date on which the employee obtains a statement of his or her average hourly rate of pay in respect of the relevant pay reference period in accordance with section 23 of that Act,

                             (ii) in circumstances where that statement is not provided having been requested by the employee to be provided to him or her, the day after the date of expiration of the time within which that statement was required to be provided by the employer in accordance with that section”

Section 23.— (1) identifies the pay reference period as the 12 month period immediately preceding the date of the request for a statement of his/ her hourly earnings:-

“Subject to subsection (2), an employee may request from his or her employer a written statement of the employee's average hourly rate of pay for any pay reference period (other than the employee's current pay reference period) falling within the 12-month period immediately preceding the request.”

The request was made on the 2 October 2020. Therefore, I find that section 23 (1) of the Act dictates the cognisable period for the purposes of redress to be 2 October 2019- 20ctober 2020.

Hours of work

These are contested. The complainant states that she worked 13 hours a week; the respondent states that she worked 6 hours.

Burden of proof

Section 22(1) of the National Minimum Wage Act obliges an employer to maintain records, in a prescribed form, showing compliance with the Act.  Section 22(3) states;

 ‘where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act in relation to an employee, the onus of proving, in proceedings before an adjudication officer or the Labour Court, that the provision was complied with lies on the employer.’

The respondent maintained no records as required by section 22(1). The onus therefore rests with the respondent. However, the Labour Court in Sheelin Mushrooms Ltd v Kreslina MWD 155, where the working hours were in dispute, held that section 22(1) does not displace the requirement for a claimant

“to give credible evidence that arrears are due and owing.”

The Court held

“It cannot have been intended that in the absence of compliance with s.22 or s.23 of the Act reliance can be placed on mere assertions made in submissions, unsupported by a scintilla of evidence in the testimony proffered by the Claimant.’

Based on the above determination, I consider that credible evidence must be characterised by consistency.

There are inconsistencies in the evidence tendered by and on behalf of both parties concerning hours worked.

The complainant ‘s oral evidence that she worked mainly up to 4pm and up to 6 pm on occasions, and that she worked a minimum of 13 hours a week, 52 weeks a year was undermined by the evidence of her witnesses. Her partner’s uncontested evidence was that she arrived home, in Naas, at 4 pm or occasionally at 5pm a distance of 12-14 miles from the shop. The witnesses selected by the complainant to give evidence state they saw her in the shop no later than 4pm. Witness 4, a witness called by the complainant stated that she saw that the complainant usually left the shop between 3.30 and 4.pm. The same witness stated that she cooked and bought lunches for the complainant and that they would have lunch between 2.30 and 3pm. The complainant did not challenge the evidence of her witnesses.

The complainant’s own evidence was that the respondent did not specify a finishing time, which could support his statement that she was free to leave after his family arrived at 12.00.

The preponderance of evidence indicates that the complainant worked from 10.00 until 14.30 pm which amounts to 4.5 hours per day, nine hours a week.

The respondent maintains that she worked 48 weeks in 2017 and 2018.The complainant did not challenge the number of weeks worked in 2017 and 2018.

Having decided that the complainant is an employee entitled to the minimum wage, I find that she is owed the following sums which represent hours worked by operative minimum wage less the amount paid to her.

2 October 2019 – 31 December 2019:  9 x13 x € 9.80 – amount paid   = €366

1 January 2020- 2 May 2020:                 9x 18 x €10.10 - amount paid =   €566

Total owed in redress:                                                                                        €922.                                              

I find the complaint to be well founded. In accordance with section 26(1) of the Act, I require the respondent to pay arrears to the amount of €922 to the complainant subject to all lawful deductions.

CA-00040672-002. Complaint under section 27 of the Organisation of Working Time Act, 1997.

It is accepted that the complainant received no paid annual leave during her employment. Her written submission claims €1036 for the thirteen hours worked over 203 weeks.

Relevant law

Section 19.— addresses the entitlement to annual leave and at subsection (1) provides as follows:

“(c) 8 per cent of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):”

Cognisable period.

Section states 23 states

 “(1) (a ) Where —

(i) an employee ceases to be employed, and

(ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee,

the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave.

( b ) In this subsection —

"relevant period" means —

(i) in relation to a cessation of employment of an employee to whom subparagraph (i) of paragraph (c) of subsection (1) of section 20 applies, the current leave year,

(ii) in relation to a cessation of employment of an employee to whom subparagraph (ii) of the said paragraph (c) applies, that occurs during the first 6 months of the current leave year —

(I) the current leave year, and

(II) the leave year immediately preceding the current leave year,”

(iii) N/A

Hence, the complainant whose employment ceased on the 2 May 2020 is entitled to accrued annual leave in respect of the 2020-21 leave year plus leave in respect of the 2109-20 leave year.

Hours worked are in dispute.

In CA-00040672-001 of this decision I have decided that the complainant worked 9 hours a week,

Hence, she is owed the following amounts:

2019-2020 Leave year:     52 x 9 x €9.80

                                                    8%                                   = €366

2020-21 leave year:        5x9x €10.10

                                                      8%                                 =€36                                                          

I find that the total owed in respect of accrued annual leave amounts to €402.

I find this complaint to be well founded. I require the respondent to pay the complainant the sum of €402 in respect of accrued leave in accordance with section 23 of the Act of 1997, subject to all lawful deductions.

CA-00040672-003. Complaint under section 7 of the Terms of Employment (Information) Acts,1994- 2020

Relevant Law in 2016.

Section 3.— (1) sets out the particulars which the employer is obliged to provide to an employee no later than 2 months after the commencement of an employee’s employment with the employer.

It is accepted that the mandatory particulars were not provided to the complainant.

The matter of the time limits within which a complaint must be lodged was addressed in ADJ 0009820. The adjudicator stated

“Section 3(1) of the Terms of Employment (Information) Act is clear that an employer shall provide the employee with a statement within two months of the start of the employment relationship. Where this is not provided, the employee has recourse to the Workplace Relations Commission where section 7(2) enables the adjudication officer to take steps to amend or add to a statement, to require a statement be provided or to award financial redress. The multiplicity of interventions allowed by section 7(2) shows that the contravention of section 3 is a subsisting contravention that endures so long after the initial two-month period the employee remains an employee not in possession of a statement.” 

The breach subsisted up until the 2 May 2020. The complainant was lodged within the 6 months of the contravention.

I find on the basis of the uncontested evidence that this complaint is well founded.

In accordance with the redress provisions set out in section 7, I require the respondent to pay the complainant the sum of €363 which amounts to four weeks wages in compensation for this breach of the Act of 1994.

CA-00040672-004. Complaint under Section 8 of the Unfair Dismissals Act, 1977.

 This dismissal was contested.  Therefore, the onus lies with the complainant to prove that the dismissal occurred and that it was an unfair dismissal.

Relevant law.

Section 1 of the Act of 1977 defines dismissal as

“dismissal”, in relation to an employee, means—

                             (a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

                             (b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”,

Nearly every detail of this complaint was contested.

The complainant first stated in evidence that she was dismissed on the 2 May and at a later point in the hearing stated that she was constructively dismissed on the 20 May as the workplace had become intolerable for her.

I can have no certainty that the complainant was dismissed on the 2 May as her own evidence is that it was the respondent’s wife who accused her of stealing and who stated that she was dismissed. None of the witnesses called by the complainant, who admittedly did state that they either heard the respondent or the respondent’s wife making this statement could attest to the date or month when the respondent’s wife allegedly notified the complainant of her dismissal.  The complainant’s own oral evidence was that the respondent on 2 May advised her to talk to his wife and following this conversation asked the complainant was “it sorted “to which she replied that it was sorted.

 The complainant did state that in the meeting with the respondent on the 9 May 2020, he  informed her that he could not work with her any longer. But at an earlier point in her oral evidence attributed this remark to the respondent’s wife. But that statement is not supported by the witness 7 who attended the meeting. In addition, evidence was submitted showing the respondent made efforts to engage with the complainant up until the 20 May 2020. The uncontested evidence is that she told the respondent on the 14 May in response to his request to her to contact him that she was very busy and would revert. On 21May she stated in response to his request for a meeting that Sundays did not suit her for a meeting. Thereafter, she vanished from view.

She stated in oral evidence that she was dismissed on 20 May because the situation had become intolerable for her. Maybe it had, but she did not inform the respondent that she was terminating her employment. She walked away from the job.

I find that the respondent did not dismiss the complainant.

I find that the complaint was not constructively dismissed.

I find that the complainant left the employment.

I do not find this complaint to be well founded.

CA-00040672-005.Complaint under section 6 of the Payment of Wages Act, 1991.

This was a claim for failure to pay the complainant the two weeks’ notice due to her under the Minimum Notice and Terms of Employment Act, 1973.

As I find that the complainant left her employment with the question of her return hanging in abeyance, I do not find that the complainant has an entitlement to paid notice.

I do not find this complaint to be well founded.

CA-00040672-001.Complaint under the National Minimum Wage Act ,2000.

I find this complaint to be well founded. I require the respondent to pay arrears to the sum of €922 to the complainant subject to all lawful deductions.

CA-00040672-002. Complaint under section 27 of the Organisation of Working Time Act, 1997.

I find this complaint to be well founded. I require the respondent to pay the complainant the sum of €402 in respect of accrued leave, subject to all lawful deductions.

 CA-00040672-003. Complaint under section 7 of the Terms of Employment (Information) Acts,1994- 2020.

I find this complaint to be well founded. In accordance with the redress provisions set out in section 7, I require the respondent to pay the complainant the sum of €363 which amounts to four weeks wages.

CA-00040672-004. Complaint under Section 8 of the Unfair Dismissals Act, 1977.

I do not find this complaint to be well founded.

CA-00040672-005.Complaint under section 6 of the Payment of Wages Act, 1991

I do not find this complaint to be well founded.

National Minimum wage; employment status disputed; Accrued leave; Terms of Employment; Unfair dismissal, not upheld; Payment of Wages complaint, not upheld.