ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00035833
Parties:
| Complainant | Respondent |
Parties | Aneta Dziel | GSA Contract Cleaning |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00043747-001 | 23/04/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00043747-002 | 23/04/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00043747-003 | 23/04/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 15 of the European Communities (Organisation of Working Time) (Mobile Staff in Civil Aviation) Regulations 2006 - S.I. No. 507 of 2012 | CA-00043747-004 | 23/04/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00043747-005 | 23/04/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00043747-006 | 23/04/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00043747-007 | 23/04/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00043747-009 | 23/04/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946 | CA-00043747-010 | 23/04/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946 | CA-00043747-011 | 23/04/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946 | CA-00043747-012 | 23/04/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00043747-013 | 23/04/2021 |
Date of Adjudication Hearing: 19/07/2022
Workplace Relations Commission Adjudication Officer: Pat Brady
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 13 of the Industrial Relations Acts 1969following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Summary of Complainant’s Case:
The complainant was employed as a cleaner by the respondent on April 5th, 2018, and remains in employment. There is some dispute about her pay rate; the respondent (which did not attend the hearing) says it is €14.40 whereas the complainant believes it should be €14.80
She had been on sick leave from March 6th, 2020, and returned on March 9th and she went out sick again on July 5th.
She submitted twelve complaints in total on April 23rd (May 26th) 2021; six under the Organisation of Working Time Act, three under s45 of the Industrial Relations Acts, and one each under the Payment of Wages Act, EC (Organisation of Working Time) (Mobile Staff in Civil Aviation) Regulations 2006 and one under the Terms of Employment (Information) Act.
This means the cognisable period for the complaints is from October 24th, 2020, to April 23rd, 2021. These are the complaints.
CA-43747-004 (Civil Aviation Regulations) was submitted in error and was withdrawn as was CA-43749-009.
CA-43747-001 is a complaint under the Payment of Wages Act that she had not been paid her full wages on April 16th, 2021.
CA-43747-002 is a complaint under the Organisation of Working Time Act that she received no weekly rest period and worked continuously seven days per week.
CA-43747-003 is a complaint under the organisation of Working Time Act that she only received half pay when on annual leave.
CA-43747-005 is a complaint under the Organisation of Working Time Act that she did not receive public holidays.
CA-43747-006 and 007 are complaints under the Organisation of Working Time Act that she respectively was not notified of her start and finishing times and of additional hours
CA-43747-010, 011 and 012 are complaints of various breaches of the Employment Regulation Orders in respect of Annual Leave, public holidays, and the daily rest period.
CA-43747-013 is a complaint under the Terms of Employment (Information) Act that she was not given a statutory statement in compliance with the Act.
The complainant gave her evidence on oath (and the interpreter also swore the relevant oath).
In respect of complaint CA-43747-001 above the complainant had no record of the specific hours worked and could not remember what they were. An obligation falls on a complainant to make out their case and she did not do so in respect of this matter.
On complaint CA-43747-002 her evidence was that she had never been given a rest period and in complaint CA-43747-003 that she had only been paid half her annual leave.
CA-43747-004 was withdrawn.
The complaints at CA-43747-005 above were that she had no leave or other payment for three public holidays, St Patrick’s Day, and the May and June public holidays.
In respect of the ERO complaints at CA-43747-010, 011 and 012 the complainant did not make any submission.
Finally, notwithstanding complaint CA-43747-005 she included a copy of the relevant documents in her papers.
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Summary of Respondent’s Case:
The respondent did not attend the hearing.
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Findings and Conclusions:
It was very difficult to capture the full extent of the complainant’s case for a variety of reasons.
She did not have the benefit of representation at the hearing and also while her first language is not English an interpreter was present. But the greatest difficulty was presented by the very poor quality of records or supporting information in respect of her various complaints, and she was extremely hazy about detail.
Judging by the disparity between the two, it appeared as if she may have had assistance with the preparation of the complaint to the WRC but despite clearly needed continuing assistance for the purposes of the hearing she was left to her own devices.
A further complication was that in respect of the ‘Redress Option’ on the manual complaint from the complainant had ticked both Adjudication and Inspection.
Some of the records necessary to support her complaints would have been available and accessible on site at the respondent’s offices (although WRC inspectors do not have jurisdiction for the enforcement of Employment Regulation Orders), and this would have been a better option for some of the complaints.
This is especially the case given the complainant’s lack of experience of WRC adjudication hearings and her poor level of presentation.
In respect of CA-43747-002 that she received no weekly rest period and worked continuously seven days per week I accept her sworn evidence and make my award below.
Again, the submissions were inadequate in relation to CA-43747-003 that she only received half pay when on annual leave and I can reach no conclusion on the complaint, so it has not met the threshold of proof required.
Complaint CA-43747-004 was withdrawn.
CA-43747-005 is a complaint under the Organisation of Working Time Act that she did not receive public holidays but only specified three. This complaint is well-founded.
I accept her sworn evidence and make my award below in respect of breaches alleged in CA-43747-006 and 007 under the Organisation of Working Time Act that she respectively was not notified of her start and finishing times and of additional hours.
CA-43747-009 was withdrawn.
The complainant made no submissions in respect of CA-43747-010, 011 and 012.
While the matters complained of resemble earlier complaints and may relate to the same alleged breaches It would be wrong to proceed in the absence of a specific submission and assume that simply on the basis of this resemblance an Adjudicator could proceed to make a finding.
Clearly, a complainant must make some elementary presentation of their complaint sufficient to allow the adjudicator to exercise even the inquisitorial powers in the Act. The complainant in this case did not do so in respect of these complaints.
CA-43747-013 is not well founded as the complainant included a copy of the relevant documents which she complained as not having received in her papers. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Complaint CA-00043747-002 is well founded and I award the complainant €1000.00. Complaint CA-00043747-005 is well founded and I award the complainant €750.00. In respect of both complaints above I order the respondent to ensure full compliance with the Organisation of Working Tine Act, 1997 in respect of the complainant’s entitlements to public holidays and weekly rest periods. Complaints CA-00043747-005 and 006 are well founded and I award the complainant €200. None of the other complaints are well-founded. |
Dated: 8th November 2022
Workplace Relations Commission Adjudication Officer: Pat Brady
Key Words:
Organisation of Working Time Act. |