Complainant

Respondent

Parties

Agnieszka  Hodor

Kenneth Barret T/ A  Meat Centre (deceased)

Representatives

Complainant appeared in Person   with assistance from Interpreter in the Polish Language

No Appearance by or on behalf of the Respondent

Act

Complaint Reference No.

Date of Receipt

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

CA-00040204-001

01/10/2020

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

CA-00040204-002

01/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991(Duplicate claim to CA-00040204-002)

CA-00040204-004

01/10/2020

This matter was heard by way of Remote Hearing pursuant to Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and SI 359/2020, which designates the WRC as a body empowered to hold remote hearings.

On October 1, 2020, the Complainant lodged three complaints with the Adjudication service of the WRC.

The Complaints arose from her employment as a Butcher for a Sole Trader. The complaints were based on submitted contraventions in the Terms of Employment (Information) Act, 1994 and Payment of Wages Act, 1991.

The Complainant had taken some advice from her Union but presented at hearing as a Lay Litigant with the support of a Financial Advisor.

The Respondent was placed on notice of the complaints on 11 November 2020.

The case was due for hearing on 10 February 2021. A postponement was granted on 4 February 2021.

The case was resumed for 16 November 2021.

On 19 October 2021, the named representative for the respondent contacted the WRC to inform the service that the Respondent had deceased.

The case continued to hearing date.

A number of days before the hearing, the named respondent representative re-affirmed that the respondent was a Sole Trader and had deceased. They went on to inform the service that in the absence of instructions they would not attend hearing. They raised the topic of short notice for hearing.

I checked the file, and the notification of hearing was issued on 18 October 2021 to the Representatives listed office. I am satisfied that the representative was on adequate notice of this hearing as reflected in the correspondence of 19 October 2021.

 I am to record that the respondent has deceased in this case and the named representative did not appear in the case.

The Complainant has filed a written statement accompanied by pay slips. I requested sight of the union employer correspondence referenced during the hearing of the case. I received an excerpt of that letter dated 2 September 2020 accompanied by a copy of 2016 P21 which drew my attention to the submitted discrepancy in pay.

The Complainant has been employed as a Butcher since September 1, 2006. She last worked at the business on 27 August 2018 from when extended sick leave commenced. She submitted that she earned €400 nett pay for a forty-hour week.

In her evidence by affirmation, the Complainant said that she had not been informed of the respondent death. As far as she was aware, there are three people currently working in the business area of a Meat market stall. She submitted that she had not spoken with her employer since August 2018.

The Complainant submitted that she continues in the respondent employment on extended sick leave, receiving Department of Social Protection payments. She was certain that she had not resigned.

The Complainant outlined that she had commenced work in 2006 on €350 nett per week which rose to €400 and remained at that level.

CA-00040204-001 Terms of Employment

The Complainant submitted that she had not received a statement in writing of the terms of her employment at any time during her employment.

Issues had arisen in 2016 where pay did not match pay slips. This caused the Complainant some concern and submitted that she would have benefitted from a written contract.

CA-00040204-002 Payment of Wages

The Complainant outlined that she had been deducted €6,000 in wages on 30 September 2020.

In or around 2016, the habitual salary payment of €400.00 per week was unilaterally reduced to €360 -370 per week. The deficit was explained by the respondent as payment for taxes and was disputed by the complainant. Pay Slips fell out of line at this time also. She stated that she was sure that tax was not the real purpose for the deduction in pay.

The Complainant submitted that she had challenged this deduction and met with the Respondent and his Accountant, but the disparity prevailed. she became stressed.

She sought the support of her Union to pursue what she was owed, and they pursued the payment of €6,000 with stated deadline of 17 September 2020. No payment issued and reports were made to Revenue and WRC Inspectorate on this matter. The Complainant had not yet received reports from these bodies to date.

The Complainant argued that she had sustained a long-term deduction of her wages and this sum should be restored. She was currently subsisting on Illness Benefit.

Ms A, Financial Advisor and witness for the complainant, confirmed that she had not been directly involved in the workplace issue of wage deduction. She identified a disparity by record  in the complainants pay 2015-2018 inclusive.

I sought to clarify the significance of the reference to 30 September 2020 as the date attributed by the complainant to the deduction of €6,000 from her wages when she had been on sick leave, and thus unpaid, since 2018.

I did this to check the marker of time vis a vis statutory time limit. The Complainant clarified that the Respondent had not given any indication or undertaking to make any payment on that date. She confirmed that the matter of pay deduction remained unresolved at the time of submission of her complaint to the WRC.

The Complainant  and her Financial Advisor exhibited a 2016 p60 incorporating 53 weeks which recorded €24,613, 53 weeks while a weekly pay slip reflected €350.01 gross pay.

CA-00040204-003 Payment of Wages

Duplicate to CA-00040204-002

CA-00040204-001 Terms of Employment

There was no appearance by or on behalf of the respondent.

CA-00040204-002 Payment of Wages

There was no appearance by or on behalf of the respondent.

CA-00040204-003 Payment of Wages (duplicate claim)

There was no appearance by or on behalf of the respondent .

I have been asked to make two decisions in this case. CA-00040204-003 is a mirror claim to CA-00040204-002.

I appreciate that there are some sensitivities in this case in terms of a deceased respondent.

I am satisfied that the Respondent Representative was on proper notice of this hearing from 18 October 2021 and has decided not to enter an appearance in the case. I have no idea when the Respondent passed away.

In receiving my decision in the case, I have accepted that the complainant is the sole attendee at hearing and from the named representative, that the respondent has deceased on a day unknown.

I have read and considered all paperwork submitted by the Complainant. I have also reflected on the evidence tendered by affirmation. I am grateful to the Interpreter for a clear translation.

CA-00040204-001 Terms of Employment

I have considered this complaint in accordance with Section 3 of the Terms of Employment (Information) Act,1994

Written statement of terms of employment.

3.— (1) An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say—

The Complainant gave uncontested evidence that she was not provided with the obligatory statement in writing during the first eight weeks of her employment.

This is a key foundation documentation necessary to ground all employments.  The omission to issue this document, available in template on WRC website is a serious and continuous contravention of Section 3 of the Act.

I find the complaint is well founded as I have identified a continuous breach of Section 3 of the Act from November 2, 2006.

The impact of this omission went on to become material in the subsequent complaint on pay.

CA-00040204-002 Payment of Wages

I made it clear at the outset that my consideration of the case was from the WRC alone and that Revenue and WRC Inspectorate were separate and autonomous bodies.

Preliminary Issue, Statutory Time Limits

The complaint was lodged with the WRC on October 1, 2020 and refers to deductions in wages first observed in 2016 and running to August 2018, from where the complainant commenced sick leave and illness benefit. I accept that the complainant is still employed by the respondent business and that she has not resigned.

I sought to explain the limits of my jurisdiction on time limits surrounding reception of the complaint in accordance with Section 41(6) of the Workplace Relations Act, 2015  

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

Section 41(8) permits an extension of time to the maximum height of 12 months if the party can prove that failure to present the complaint or refer the dispute arose from reasonable cause. Cementation Skanska v Carroll DWT 38/2003, Labour Court.

The Complainant presented a very cogent and uncontested account of the evolution of her dispute with the respondent and the measures both parties engaged in to resolve the matter across 2016 and 2017, without success. She explained that the deductions had been unfair and had placed a financial burden on her. She expressed a frustration that Revenue had not addressed the matter.

I explained that I was bound to address the statutory time limits permitted to me in this case. I asked just why the Complainant had attributed the deduction of €6,000 to the date of 30 September 2020 on the complaint form, which, if accurate would have allowed me unfettered jurisdiction in the case?

The Complainant explained that this was a date inserted by her Union, but that the contravention dated back to an unspecified date in 2016. I found it regrettable that the Union were not present on the day of hearing. I also had a slight unease that I had requested sight of the Union letter dated 2 September 2020 and received a record of a portion of that letter.

I am satisfied that the complainant engaged her Union in pursuit of a pay claim in respect a pay deduction during 2020. I have viewed an extract of that letter dated 2 September 2020. This letter referred to a long-term disparity from the commencement of the complainant’s employment and not 2016 which the complainant identified in her evidence.

The letter placed the Respondent on notice of a claim for €6,000 and failing payment by 17 September 2020, the matter would be referred to WRC bodies and Revenue.

I explained the limits to my jurisdiction again and explained that a submission seeking an extension of time to 12 months would not bring the claim proximate to the provisions of Section 41 of the Workplace Relations Act 2015.

In this, I am mindful of Hogan J observations in the case of HSE v Mc Dermott [2014] IEHC 331, This was a case which pursued an unfulfilled pay increase. Hogan J marked that the “framing the complaint “was central to claiming jurisdiction and that jurisdiction arose “from the date of the contravention to the date the complaint relates “

I have applied this to the facts of this case and must find that the contravention relates to an unspecified date in 2016, which is manifestly outside my jurisdiction contained in Section 41(6) or 41(8) of the Act.

The date inserted on the complaint form of 30 September 2020 was not directly related to the contravention, but a date when the complainant was hopeful of a resolution to the Union claim. By then, she had not earned pay from the respondent for a two-year period. No engagement occurred or undertaking arose from the respondent in respect of this letter.

I explained to the complainant that I would first consider the issue of time limits as a preliminary issue, but that I would hear the substantive case also.

I have found that the claim is manifestly out of time and that I lack the jurisdiction to advance the matter. The claim is not well founded.

As the complaint has concluded at the Preliminary stage, I am not obliged to advance on my findings on the substantive matter.

CA-00040204-003 Payment of Wages (duplicate claim)

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00040204-001 Terms of Employment

Section 7 Terms of Employment (Information) Act, 1994   requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

I have found the claim to be well founded as a continuous breach of Section 3 of the Act. In accordance with my powers under section 7 of the Act, I order the Respondent to issue a written statement compliant with all aspects of Section 3.

In addition, I find that an order of compensation is both just and equitable and I order the Respondent to pay the Complainant 4 weeks’ pay, €1600 in respect of the continuous contravention of section 3 of the Act.

CA-00040204-002 Payment of Wages

Section 6 of Payment of Wages Act, 1991, requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 5 of the 1991 Act.

I have found this claim not well founded on the Preliminary Issue of Time Limits.

CA-00040204-003 Payment of Wages

Duplicate to CA-00040204-002

Terms of employment, payment of wages, Respondent deceased