ADJUDICATION OFFICER DECISIONS
Adjudication Reference: ADJ-00031442
Parties:
| Complainant | Respondent |
Parties | Daniel Okroj | ND Signs Ltd |
Representatives | Self-represented | Self-represented |
Complaints:
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-00041741-001 | 31/12/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00041741-002 | 31/12/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00041741-003 | 31/12/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00041741-004 | 31/12/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00041741-005 | 31/12/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00041741-006 | 31/12/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00041741-007 | 31/12/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00041741-009 | 31/12/2020 |
Date of Adjudication Hearing: 07/10/2021
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Procedure:
On the 31st December 2020, the complainant referred complaints to the Workplace Relations Commission. The complaints were scheduled for adjudication on the 7th October 2021. This was held remotely.
The complainant attended the hearing. Niall Dennis, Justyne Dennis, Celia Dempsey and Mary Groves attended for the respondent.
In accordance with section 41 of the Workplace Relations Act, 2015following 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.
Background:
The complainant asserts that he was underpaid and not provided with a statement of terms of employment. He seeks annual leave and public holiday pay. The respondent denies the claims. |
Summary of Complainant’s Case:
The complainant is a skilled vinyl applicator and his employment with the respondent commenced on the 1st October 2019. The complainant asserts that he was paid an hourly rate of €12.50 when this ought to have been €19.50. He asserts that he was not provided with a contract of employment. The document exhibited at the hearing cited his incorrect address and he had not received this. He was placed on lay-off in March 2020 and had an operation in July 2020. He was ready to return to work in August 2020 and could not work the 2.30pm to 10pm shift offered for transport reasons. The shift arrangement ended in September 2020, but he was still required to work the later hours. |
Summary of Respondent’s Case:
The respondent outlined that the complainant’s rate of pay was €12.50 per hour and there was no staff member on €19.50 per hour. The complainant had been on probation and probation was important as the skills for the role were learnt on the job. The respondent outlined that the managing director had supplied the exhibited contract of employment. The complainant and other staff were placed on lay-off in March 2020 and returned in May 2020. The complainant was then absent. It introduced the staggered shift pattern to ensure social distancing and the complainant had never tried this. The complainant was paid the public holiday days due and was not entitled to April and May 2020 as he was on lay-off. The complainant was paid for one day of annual leave and had acquired an entitlement of 8 days. The respondent outlined that it had not dismissed the complainant, who had not attended work but had not resigned. |
Findings and Conclusions:
CA-00041741-001 This is a complaint of penalisation pursuant to the Terms of Employment (Information) Act. I have found below that there were contraventions of the Terms of Employment (Information) Act. I accept that the complainant asked the supervisor for a contract. I find, however, that there is no evidence of detriment caused to the complainant for invoking a right under the Terms of Employment (Information) Act. I accept that the complainant sought a higher rate of pay, but while the respondent did not increase his pay, this non-payment was not a consequence of the complainant seeking a contract. The complainant sought the contract in order to clarify his rate of pay, but this was not the reason for keeping his pay at €12.50 per hour. I, therefore, find that the complaint of penalisation is not well-founded. CA-00041741-002 This is a complaint pursuant to the Minimum Notice & Terms of Employment Act. It is fair to say that the circumstances around the ending of this employment are unclear. The complainant was on lay-off and then had surgery. A shift pattern was introduced to ensure social distancing which the complainant did not agree to. The parties dispute whether the complainant was excluded or whether he absented himself. An entitlement to notice under the Minimum Notice & Terms of Employment Act requires there to be a termination of employment. There is insufficient evidence, in this case, to find that the employer terminated the complainant’s employment. This complaint is, therefore, not well-founded. CA-00041741-003 This is a complaint pursuant to the Terms of Employment (Information) Act regarding the failure to provide a statement of core terms, as required by section 3(1A) of the Act. As of the 4th March 2019, an employer is required to provide a new employee with a statement of their core terms within five days of the employment commencing. The complainant asserted that the respondent did not provide him with a statement. The respondent outlined that a statement was provided. For the reasons set out below, I find that no statement was provided to the complainant, including a statement of core terms. The requirement for a section 3(1A) and a section 3 statement are separate and amount to standalone contraventions. No statement of core terms was provided in this case, so the complaint is well-founded, and I award redress of €500. CA-00041741-004 This is a complaint pursuant to the Terms of Employment (Information) Act regarding the failure to provide a statement of employment, as required by section 3 of the Act. The complainant’s employment commenced on the 1st October 2019. The complainant asserts that he was not provided with a statement of terms as required by the Terms of Employment (Information) Act. The respondent asserts that a statement was provided and exhibits an unsigned and undated document. On the balance of probabilities, I find that a statement was not provided to the complainant. I note that the document exhibited contains the incorrect home address of the complainant. If the document was provided to the complainant, one would expect this to be raised at the time. There was no discussion between the parties about the contents of the document, in particular to correct the address. I also note that the document exhibited was not dated or signed by the respondent; one would expect this of a document that had been actually handed to an employee. For these reasons, I find that no statement of terms was provided and there was, therefore, a contravention of the Terms of Employment (Information) Act. The requirement of a section 3 statement is a longstanding and important protection for employees. I award redress of €1,900 for this contravention of the Act. CA-00041741-005 This is a complaint pursuant to the Payment of Wages Act regarding an underpayment of the complainant’s wages. The complainant asserts that he was entitled to be paid €19.50 per hour, while the respondent asserts that the complainant was paid the hourly rate due of €12.50 per hour. The respondent stated that no one was on a €19.50/hour rate. I accept that the complainant believed that he was entitled to a higher rate of pay than the €12.50 per hour paid to him. Even if he was led to believe (by the supervisor) that there would be a higher rate of pay, there is no specific statement or document that leads €19.50 to be the properly payable hourly rate of pay. A claimant is required to show that wages are properly payable in order for there to be a finding that their non-payment is a contravention of the Payment of Wages Act. The complainant did not identify any specific oral or written statement that could base a finding that €19.50 was the properly payable hourly rate of pay. It follows that the complaint is not well-founded as there is no established contravention of the Payment of Wages Act. CA-00041741-006 This is a complaint pursuant to the Organisation of Working Time Act regarding annual leave entitlements. The respondent stated that the complainant had accrued 8 days of annual leave and took one day’s annual leave. It follows that the complainant is entitled to seven days annual leave as cesser pay. I award €500 in cesser pay. CA-00041741-007 This is a complaint pursuant to the Organisation of Working Time Act regarding public holidays. I accept the respondent’s position that the complainant was paid the public holidays, apart from April and May 2020. Specifically, I accept that while the pay slip for March 2020 does not set out a separate public holiday payment for St Patrick’s Day, 2020, I find that this pay was encompassed in the general pay set out in the pay slip. The complainant was entitled to public holiday pay for the April and May 2020 public holidays as a result of the Third Schedule of the Organisation of Working Time Act. This provides that an employee is entitled to public holiday pay during an authorised period of leave, specifically including lay-off. The complainant was placed on lay-off at the end of March and was on lay-off for the April and May public holidays. Per the Third Schedule, he is entitled to two days of public holiday pay. This amounts to €142. CA-00041741-009 This is a complaint of penalisation pursuant to the Terms of Employment (Information) Act. I have found elsewhere that there were contraventions of the Terms of Employment (Information) Act. I accept that the complainant asked the supervisor for a contract. I find, however, that there is no evidence of detriment caused to the complainant for invoking a right under the Terms of Employment (Information) Act. I accept that the complainant sought a higher rate of pay, but while the respondent did not increase his pay, this non-payment was not a consequence of the complainant seeking a contract. The complainant sought the contract in order to clarify his rate of pay, but this was not the reason for keeping his pay at €12.50 per hour. I, therefore, find that the complaint of penalisation is not well-founded. Overall outcome I have found that some of the complaints are well-founded and others not. I award compensation of €500 for CA-00041741-003 (statement of core terms), €1,900 for CA-00041741-004 (section 3 statement), €500 for CA-00041741-006 (annual leave) and €142 for CA-00041741-007 (public holidays). The sum of these amounts is €3,042. |
Decisions:
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.
CA-00041741-001 I decide that this complaint of penalisation pursuant to the Terms of Employment (Information) Act is not well-founded. CA-00041741-002 I decide that this complaint pursuant to the Minimum Notice & Terms of Employment Act is not well-founded. CA-00041741-003 I decide that the complaint pursuant to the Terms of Employment (Information) Act is well-founded and the respondent shall pay to the complainant redress of €500. CA-00041741-004 I decide that the complaint pursuant to the Terms of Employment (Information) Act is well-founded and the respondent shall pay to the complainant redress of €1,900. CA-00041741-005 I decide that the complaint pursuant to the Payment of Wages Act is not well-founded. CA-00041741-006 I decide that the complaint pursuant to the Organisation of Working Time Act is well-founded and the respondent shall pay to the complainant redress of €500. CA-00041741-007 I decide that the complaint pursuant to the Organisation of Working Time Act is well-founded and the respondent shall pay to the complainant redress of €142. CA-00041741-009 I decide that this complaint of penalisation pursuant to the Terms of Employment (Information) Act is not well-founded. |
Dated: 5th January 2023
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Key Words:
Pandemic / Statement of terms / Third Schedule of the Organisation of Working Time Act |