ADJ-00035252

Complainant

Respondent

Anonymised Parties

An Employee

A Bar

Representatives

  Self

Accounts & Payroll Administrator and two family members

Act

Complaint 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-00046360-001

22/09/2021

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

CA-00046360-002

22/09/2021

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

CA-00046360-003

22/09/2021

The Complainant commenced his employment as a barista with Company A on 5th May 2021. The Complainant moved to the Respondent on 29th June 2021. The Complainant was paid €634.61 gross a week. 

At the adjudication hearing, it became apparent that there was some confusion on the part of both parties as to who is the employer and the correct Respondent.

The Complainant commenced his employment with Company A on 5th May 2021. He moved to the second employer (the Bar) on 29th June 2021. For the avoidance of doubt, the Complainant referred the complaints against the second employer, the Bar. For the purposes of the within claim this is the correct respondent and only matters related to the Complainant’s employment with the Respondent will be dealt with in these decisions.

The Complainant submits as follows.

The Complainant started working for Company A on 5th May 2021. He moved to the Respondent on 29th June 2021.  On 21st August 2021 he gave notice that he would be leaving the Respondent. The following week he had holidays booked and was due to return to work for the last week.

The Complainant submits that he was paid €33,000 per year. He worked the hours he was rostered to work, mostly 40 hours a week for the first seven weeks and then it changed from week to week. He was told that he was to work 45 hours per week to reach his salary. The Complainant argued that it was not in his contract.

The Complainant submits that when he got his holiday pay, the Respondent deducted the difference in hours between 45 hours and the hours he had actually worked from his holiday pay calculations. The Complainant worked 648 hours which at 8% gave 51.48 holiday hours and €14.10 per hour (based on a 45-hour week) which totalled €731.07. The Respondent deducted €512.55, the difference between the 45 hours verbally contracted and what he had actually worked, and he was paid €218.52.

At the adjudication hearing, the Complainant said that he was employed to do a full-time job on an agreed salary. He asserted that he wasn’t informed of the requirement to work 45 hours until later.

The Complainant argued that a copy of the contract was left for him in Company A’s premises in an envelope and it did not contain his hours of work. He agreed that he received the email of 10th May 2021 with his contract and never questioned the hours of work within it.

The Respondent’s representatives submit as follows.

The Respondent is a family run business and involves elderly parents and Ms H, their daughter as Accounts & Payroll Administrator.

The Complainant started his employment with Company A on 5th May 2021 as a barista on a salary of €33,000 per year. It was expected that he would work 45 hours a week. However, due to the delay with the launch of the coffee place he worked significantly less, as little as 24 hours a week. At the time, the parents of the owner of Company A were looking for a person to work in a bar. The Complainant felt that the bar work would suit him better and he asked to be moved to the Respondent to work in the bar. He moved to the Respondent on 29th June 2021. 

It was submitted on behalf of the Respondent that the Complainant was asked to move to an hourly rate of pay. However, he refused and told the Respondent that he would work up the hours. The Respondent submits that, on a few occasions, the Complainant was told very clearly that, as he was not working his 45 hours per week, he would have to make up the hours. The Complainant was offered to move to 3 days a week and to claim social welfare benefits for 2 days, but he refused that offer.

At the adjudication hearing, it was submitted on behalf of the Respondent, that the Complainant was offered salary of €31,000. He requested €33,000 and it was agreed but, before he accepted the position, he was told that he was required to work 45 hours week.

It was submitted that on 10th May 2021 an email with the Complainant’s contract which included hours of work as 45 hours, and a copy of the Employee Handbook was issued to the Complainant.

A record of hours worked by the Complainant was exhibited by the Respondent. The Complainant did not dispute the details contained in the document.

The record shows that the Complainant worked 648 hours in total, 241 hours for Company A, and 407 hours for the Respondent. 

The relevant law

Section 19 of the Organisation of Working Time Act, 1997 stipulates as follows;-

19. Entitlement to annual leave

(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

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

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater. 

The parties agreed that annual leave was to be calculated in accordance with section 19 of the Organisation of Working Time Act 1997 and in particular agreed that the Complainant became entitled to annual leave at a rate of 8% of the hours worked, up to 4 working weeks.

There was no dispute between the parties that the Complainant had worked 648 hours in total, 407 of which were for the Respondent. There was also no dispute that his annual leave entitlement for the period that he had worked for the Respondent, calculated at 8% of the hours he had worked, equalled to 32.56 hours, which at the rate of €14.10 per hour gave €459.10 gross.

The difficulty arose when the Respondent unilaterally decided to reduce the amount paid to the Complainant on cessation of his employment due to the alleged overpayment with respect to his salary and paid the Complainant €218.52 gross for his accrued annual leave. 

While the Payment of Wages Act, 1991 does not prohibit deductions or payments the purpose of which is the reimbursement of the employer in respect of any overpayment of wages, I am not satisfied that it is the case in the circumstances of the within case. Whilst I can appreciate the point that the Respondent is making, I am not satisfied that the payment in question could be described as an overpayment of wages in circumstances where the Complainant’s remuneration has been clearly identified as €33,000 per year. In the event that the Complainant was required and failed to work 45 hours a week, as argued by the Respondent’s representatives, the failure to work the required hours would have been due to no fault on part of the Complainant.

Having carefully considered the circumstances of the within case, I find that the Complainant is owed €240.58 in outstanding annual leave entitlements. 

I declare this complaint to be well founded. I direct the Respondent to pay the Complainant €240.58 in outstanding annual leave entitlements.

The Complainant submits that he did not receive the appropriate payment in lieu of notice of termination of his employment.

The Complainant submits that after giving his two weeks’ notice on 21st August 2021, he was to take one week of holidays and work the weekend ending 6th September 2021. However, he was sent the following message: “Hi [the Complainant] hope you had a great holiday I was thinking it may be best because you just off the plane & abroad you don’t work this week”. The Complainant said that he was fully vaccinated and travelled to a green light country and was not in breach of government guidelines. He did not have to isolate. He was paid for two days during this week (€253.84 and not €634.61).

The Respondent’s representatives submit as follows.

The owners of the business are two elderly persons, one of them is quite ill.

The Complainant was normally off on Mondays, Tuesdays and Wednesdays as the Respondent only traded on Thursday – Sunday.

On Saturday 21st August 2021 the Complainant gave the Respondent two weeks’ notice. The Respondent understood that the Complainant’s last day at work would be Friday 3rd September 2021 i.e. two weeks from 21st August. The Complainant commenced his one week’s annual leave on 23rd August 2021 which was paid to him. The Complainant was then paid for Thursday and Friday as his employment terminated.

The relevant law

Section 5 of the Payment of Wages Act, 1991 stipulates as follows;-

5. Regulation of certain deductions made and payments received by employers

(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless–

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.

(2) An employer shall not make a deduction from the wages of an employee in respect of—

(a) any act or omission of the employee, or

(b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment, unless–

(i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and

(ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and

(iii) before the time of the act or omission or the provision of the goods or services, the employee has been furnished with—

(I) in case the term referred to in subparagraph (i) is in writing, a copy thereof,

(II) in any other case, notice in writing of the existence and effect of the term, and

(iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction, and

(v) in case the deduction is in respect of compensation for loss or damage sustained by the employer as a result of an act or omission of the employee, the deduction is of an amount not exceeding the amount of the loss or the cost of the damage, and

(vi) in case the deduction is in respect of goods or services supplied or provided as aforesaid, the deduction is of an amount not exceeding the cost to the employer of the goods or services, and

(vii) the deduction or, if the total amount payable to the employer by the employee in respect of the act or omission or the goods or services is to be so paid by means of more than one deduction from the wages of the employee, the first such deduction is made not later than 6 months after the act or omission becomes known to the employer or, as the case may be, after the provision of the goods or services.

The Complainant alleges that he informed the Respondent that he would terminate his employment and that he was not paid for the notice period. The Respondent refutes the claim.

There was no dispute that the Complainant was paid a yearly salary of €33,000. He was paid €634.61 gross weekly.  The Complainant worked four days a week, namely Thursdays, Fridays, Saturdays, and Sundays. Therefore, the Complainant was paid €158.65 gross per each working day.

On Saturday 21st August 2021, the Complaint informed the Respondent that he wished to terminate his employment and was giving the Respondent two weeks’ notice. The Respondent, correctly in my view, understood that the Complainant’s last day at work would be Friday 3rd September 2021. If the Complainant wished to work longer than the two weeks he notified the Respondent of, i.e. on Saturday 4th and Sunday 5th September 2021, he should have communicated it clearly to the Respondent.

The Complainant was on one week’s annual leave from Monday 23rd August 2021, and he was paid his full salary for that period. For the period from 30th August to 3rd September 2021, the Complainant was paid €253.84 (two days at the gross rate of €126.92). I note that the Complainant was not required to work, as per the Respondent’s request. However, he was willing and available to work on Thursday 2nd September and Friday 3rd September 2021. He was therefore entitled to the payment of €317.31 gross for the days he was available for work. There was no dispute that he received €253.84.

I declare this complaint to be well founded. I order the Respondent to pay the Complainant €63.47 gross, subject to any lawful deductions.

The Complainant submits that he did not receive a written statement of his core terms of employment.

At the adjudication hearing, the Complainant said that his written contract did not contain how many hours he would work for his salary. It was only given verbally after he had accepted the position.

It was submitted on behalf of the Respondent that the Complainant was furnished with his terms of employment by email on 10th May 2021 by Company A. It was sent to the same email address to which the Complainant’s payslips were emailed weekly.

The Respondent exhibited printouts from an automated system Blip that is in use in Company A. The system has a separate profile for each employee. All entries such as minutes of meetings are recorded, and time stamped, and could not be amended. As the owners of Company A are children of the Respondent and help out with the management of the Bar, all conversations with the Complainant were recorded in the system. The entries in Blip show that the Complainant was issued with his terms of employment.

The relevant law

Section 3 of the Term of Employment (Information) Act stipulates as follows;-

3. Written statement of terms of employment

(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—

(a) […]

(b) […]

(c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d) the title of the job or nature of the work for which the employee is employed,

(e) the date of commencement of the employee's contract of employment,

(f) […]

(fa) a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order,]

[(g) […]],

(ga) that the employee may, under section 23 of the National Minimum Wage Act 2000, request from the employer a written statement of the employee's average hourly rate of pay for any pay reference period as provided in that section,]

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i) any terms or conditions relating to hours of work (including overtime),

(j) any terms or conditions relating to paid leave (other than paid sick leave),

(k) any terms or conditions relating to—

(i) incapacity for work due to sickness or injury and paid sick leave, and

(ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee's contract of employment) to determine the employee's contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee's employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

(1A) Without prejudice to subsection (1), an employer shall, not later than 5 days 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:

(a) the full names of the employer and the employee;

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act 2014);

(c) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires;

(d) the rate or method of calculation of the employee's remuneration and the pay reference period for the purposes of the National Minimum Wage Act 2000;

(e) the number of hours which the employer reasonably expects the employee to work—

(i) per normal working day, and

(ii) per normal working week.

There was no dispute that the Complainant was furnished with written statement of his terms of employment and the Employee Handbook by Company A. At the adjudication hearing, the parties were in agreement that the contract, as issued by Company A applied to the Complainant’s employment with the Respondent. The Complainant’s claim was founded on his assertion that the hours of work were not specified in the initial contract that was issued to him by Company A. This was disputed by the Respondent.

The Complainant commenced his employment with the Respondent on 29th June 2021. It was not in dispute that he worked for the Respondent on the same terms of employment as per the contract issued by Company A. While there was some confusion as to the hours of work in the initial contract, it has no bearing on the decision in the within case. The parties confirmed that the Complainant moved to the Respondent and was paid by the Respondent, the name of the Respondent figured on his payslips, and he was registered as an employee of the Respondent for taxation purposes. The Complainant was, therefore, entitled to a written statement of his terms of employment from his new employer, the Respondent. The information required by subsection (1A) must be given not later than five days after the commencement of employment. The remaining information must be given not later than two months after the date of commencement of employment i.e., 28th August 2021. I note that the Complainant communicated his intention to resign his position on 21st August 2021 and his employment terminated on 3rd September 2021.

I appreciate that the failure to issue a written statement of employment was due to inadvertence and that both parties appeared to share the confusion as to the relationship between the Complainant and each of his employers.

I declare the complaint to be well founded. Having carefully considered the circumstances of this case, I award redress that I consider just and equitable in the amount of €300.

Annual leave – terms of employment – payment of wages