Complainant

Respondent

Parties

Sebastian  Teixeira

Ebonwood Limited

Representatives

  Self Represented

 Peninsula

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00027518-002

02/04/2019

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

CA-00027518-003

02/04/2019

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

CA-00027518-005

02/04/2019

The Complainant submitted various complaints under the Organisation Of Working Time Act 1997 and the Payment of Wages Act 1991.

The Complainant was employed as a Housekeeper Assistant from March 7th 2004 to December 16th 2018. The Complaints were submitted to the WRC on April 4th 2019, therefore the period which is covered by the Act (six months prior to the submission of a complaint) is from October 4th 2018 to December 16th 2018.

The Complainant stated he was an Indian National and did all sorts of jobs while employed by the Respondent including painting, gardening, valet, general maintenance and at the employer’s home.

The Complainant stated he had no set working hours. He stated he was on a salary of 400 euros per week. He stated the Company looked after his working permit but took money from his wages for this, with no agreement in place for that.

The Complainant stated he was never paid for bank holidays.

The Complainant said wages of all staff were reduced in 2009 by 10%.

In 2013 the Daughter of the Owners took over the running of the Hotel and over time reduced his hours of work, he was treated unfairly and he was bullied and harassed.  The Complainant stated his wages were very low and he could barely survive and feed his family.

The Complainant asked the Owner to complete social welfare forms for the days he was not working and had his hours reduced but she refused and denied him benefits.

In summary the Complainants complaint form contained the following complaints and I have assigned them as follows

Under CA-00027516-002 complaint under the Organisation of Working Time Act 1997;

2.1   He never received his Bank (Public)  holidays through the period of his employment

Under CA-00027516-003 complaint under the Organisation of Working Time Act 1997

3.1   He had no set hours

3.2   He used to work at the Respondents home at times

3.3   Sometime during or after 2013 his hours of work, issued by weekly email, were reduced

3.4   He asked the Respondent to compete a Social Welfare form for the days he was not working and they refused which denied him benefits.

3.5    

Under CA-00027516-005 complaint under the Payment of Wages Act 1991;

5.1   His pay was very low

5.2   He took extended holiday leave without pay between January and March

5.3   In 2009 his wages were reduced by 10%

5.4 The Respondent took money from his wages to look after his work permit without agreement

Ebonwood Limited trading as “The Station House Hotel” (hereafter “the Respondent”) operates as a hotel in Kilmessan Co Meath. 

The Complainant was employed as an Accommodation Assistant. 

The Complainant has taken claims under the Organisation of Working Time Act 1997 and the Payment of Wages Act 1991. 

The Respondent denies these claims. 

The Complainant was employed as an Accommodation Assistant on the 12th of July 2004.

The Complainant signed a contract of employment for this role on the 2nd of September 2008. 

On the 13th of August 2018 the Respondent held an informal meeting with the Complainant regarding his performance. Around this time the Complainant was threatening to resign from his employment and was speaking about this to other staff and was telling other staff members that he was resigning.   

On the weekend of the 6th of December 2018 the Complainant did not show up for work. The Complainant did not give notice that he would not be attending for his shift and was seen by other staff members working in Navan Shopping Centre. 

On the 12th of December the Respondent sought to speak with the Complainant and texted him to meet them at Reception. However, the Complainant responded and informed the Respondent that they had actually left for the day.  The Respondent was not notified of this in advance.  

On the 19th of December the Complainant emailed the Respondent making allegations of constructive dismissal. The Complainant raised issues in this correspondence which were new to the Respondent. 

On the 21st of December the Respondent replied to this and offered the Complainant a date on which to raise a grievance. 

On the 22nd of December the Complainant responded and declined the offered grievance procedure as he was engaging with a third party to represent him.

From this correspondence the Respondent sought to reschedule the meeting to the 9th of January to facilitate a third party. 

On the 24th of December the Complainant requested his P45. However, the Respondent had not received a formal resignation from him. 

On the 3rd of January the Complainant formally resigned in writing. 

 The Respondent asked the Complainant to reconsider his resignation but he did not. 

 Preliminary Issue: 

The Respondent submitted that the Complainant is statute barred from alleged contraventions

Section 6(4) of the Payment of Wages Act, 1991 requires a complainant to submit a complaint within 6 months of “the date of the contravention to which the complaint relates”. 

Section 27 (4) of the Organisation of Working Time Act, 1997 states “A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

The Respondent submits that the Complainant lodged his complaint on the 2nd of April 2019 and resigned on the 16th of December 2018, hence the Complainant can only claim for contraventions between the 2nd of October 2018 and the 16th of December 2018.

Organisation of Working Time Act 1997

The Complainant has taken a claim stating that he has never been paid for his public holidays. 

The Respondent submits that the Complainant can only claim for three bank holidays within this contravention period. These are dated the 29th of October, 25th of December and 26th of December 2018. The Respondent submits that this was transferred to the Complainants annual leave count. 

The Complainant has also taken a claim stating that he had worked extended holidays with no pay during the period between January and March. 

The Respondent submits that the periods between January and March are out of time. 

The Respondent submits that the Complainant was paid his holidays in a lump sum at the termination of his employment. 

The Payment of Wages Act 1991

The Complainant has raised a complaint under the Payment of Wages Act for deductions from pay spanning back to 2004. The Complainant has submitted that he did not consent to a deduction from his pay to allow for the Respondent to pay for his employment permit and further that they withheld this from him. 

The Complainant has also raised an issue stating that he was subject to a 10% pay decrease during the recession. 

The Respondent would refer to the High Court judgement in HSE -v- McDermott [2014] IEHC 331 where the relevant period for the purposes of claims under the Payment of Wages Act was extensively considered. Here Hogan J concluded as follows: “For the purposes of this limitation period, everything turns, accordingly, on the manner in which the complaint is framed by the employee. If, for example, the employer has been unlawfully making deductions for a three-year period, then provided that the complaint which has been presented relates to a period of six months beginning “on the date of the contravention to which the complaint relates”, the complaint will nonetheless be in time. It follows, therefore, that if an employer has been making deduction X from the monthly salary of the employee since January 2010, a complaint which relates to deductions made from January, 2014 onwards and which is presented to the Rights Commissioner in June, 2014 will still be in time for the purposes of s. 6(4). If, on the other hand, the complaint were to have been framed in a different manner, such that it related to the period from January, 2010 onwards, it would then have been out of time.” 

The Respondent submits that as the Complainant has outlined his contravention as beginning in 2004, this complaint is out of time.  In light of the High Court’s analysis, the Respondent would refer to the manner in which The Complainant has framed their complaint, namely the fact that he has framed his complaint from 2004.  It is submitted that the date to which the present complaint relates commences  in 2004 and thus is outside of the statutory time period. 

In light of the foregoing, it is submitted that this claim is statute barred for the purposes of the Payment of Wages Act and consequently, the Adjudicator should decline jurisdiction in relation to the same.

Under CA-00027516-002 complaint under the Organisation of Working Time Act 1997;

Section 27 (4) of the Organisation of Working Time Act, 1997 states “A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.” Therefore as the Complaint was submitted on April 2nd 2019  and the Complainants employment resigned on the 16th of December 2018, the Complainant can only claim for contraventions between the 2nd of October 2018 and the 16th of December 2018.

Complaint. The Complainant never received his Bank (Public)  holidays through the period of his employment.

Finding. The Respondent submitted Payslip No 61 for the Complainant which showed the Complainant being paid 2,805.90 Euros on January 6th 2019 for all outstanding holiday entitlements and Public Holidays due. The Complainant had no evidence to support his Complaint. I find the Complaint not well founded.

Under CA-00027516-003 complaint under the Organisation of Working Time Act 1997

Complaint The Complainant had no set hours. He used to work at the Respondents home at times.

Finding. The Complainant signed two contracts of employment, the first of which allowed the Employer assign the Complainant to any duties as required and the second on September 2nd 2008 defined the Complainants hours as up to 45 hours a week over five days. The contract allowed for the Employer to set varying hours. The Complainant has not set out a premia facie case to support the complaints and I find the complaints not well founded.

Complaint. Sometime during or after 2013 the Complainants hours of work, issued by weekly email, were reduced.

Finding. The Complainant relates to 2013. The Complaint is out of time and I find the complaint not well founded.

Complaint. The Complainant asked the Respondent to compete a Social Welfare form for the days he was not working and they refused which denied him benefits.

Finding. There is no provision under the Act to deal with this complaint and I find the complaint not well founded.

Under CA-00027516-005 complaint under the Payment of Wages Act 1991;

Section 6(4) of the Payment of Wages Act, 1991 requires a complainant to submit a complaint within 6 months of “the date of the contravention to which the complaint relates”.  Therefore as the Complaint was submitted on April 2nd 2019  and the Complainants employment resigned on the 16th of December 2018, the Complainant can only claim for contraventions between the 2nd of October 2018 and the 16th of December 2018.

Complaint. The Complainant stated his pay was very low

Finding. There is no provision under the Act to deal with this complaint and I find the complaint not well founded.

Complaint. The Complainant stated he took extended holiday leave without pay between January and March.

Finding. The Complaint relates to January to March 2018 (at the latest). The Complaint is out of time and I find the complaint not well founded

Complaint. In 2009 the Complainant stated his  wages were reduced by 10%

Finding. The Complainant relates to 2009. The Complaint is out of time and I find the complaint not well founded.

Complaint; The Complainant stated the Respondent took money from his wages to look after his work permit without agreement.

Finding. The Complainant provided no evidence to the Hearing to support this complaint and I find the Compliant not well founded.

Complaint Number CA-00027516-002 complaint under the Organisation of Working Time Act 1997 is not well founded.

Complaint Number CA-00027516-003 complaint under the Organisation of Working Time Act 1997 is not well founded.

Complaint Number CA-00027516-005 complaint under the Payment of Wages Act 1991 is not well founded.