ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00042892

Parties:

Complaints:

Date of Adjudication Hearing:  04/05/2023

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, following 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 complaints are that the Respondent failed to pay the Complainant minimum notice and holiday pay at the end of her employment and that she did not receive written terms of conditions of employment.

Summary of Complainant’s Case:

The Complainant worked as member of the floor staff at the hotel owned by the Respondent.

She worked in or around 18 hours per week.  She was employed by the Respondent from June to September 2022.  When she was returning to college she asked for weekend work.  She was told that she could not be facilitated with this and following an exchange of a number of texts, she was effectively dismissed.  She phoned the manager in late September and October and was not given a satisfactory response.  She was dismissed from her employment with no minimum notice, no holiday pay and no written contract.  The Complainant gave sworn evidence during which she questioned the Respondent to provide evidence that she had been paid and that she had a written contract.

Summary of Respondent’s Case:

The Respondent stated that this was a vexatious claim.  The Complainant previously worked for a Contractor who provided the services to the hotel.  He did not deduct tax or PRSI from his employees.   He left without paying his staff.  As a gesture of goodwill, the Respondent paid the Complainant one week’s wage in cash.  Thereafter she was put on the books.  When it came time for her to return to college and avail of the SUSI grant, she wanted to be paid in cash.  This was not agreed by the Respondent. It is contended that the Complainant was given one week’s holiday pay.   She had accrued 21.24 hours annual leave and she was given 18 hours in September 2022, and a further 3.24 hours in October 2022.  It is contended that the Manager signed a contract for the Complainant but she would not take the contract as that would jeopardise the grant.                                       Representative of the Respondent Ms Q gave sworn evidence in which she referred to text messages between the Complainant and her showing that the Complainant said she could not work in the hotel unless she was paid in cash.  Representative of the Respondent Mr M gave sworn evidence.        He stated that the Complainant’s employment was terminated as she wanted to be paid in cash.               As far as he was concerned this amounted to fraud on the Revenue and the Respondent would not agree to engaging in fraudulent activity.  The Respondent will make a complaint to SUSI that the Complainant is obtaining a grant under pretence.  The Complainant was paid for a week at the beginning of her employment when her previous employer left without paying her.  This can be reconciled as the week’s annual leave she claims.

Findings and Conclusions:

CA-00053301-001   Minimum Notice & Terms of Employment Act 1973

The Complainant contends that her employment was terminated in or around 16 September 2022 and she received no notice.  I note the message from her to the Manager, submitted by the Respondent in evidence: “I won’t be able to work in the hotel from now on unless it’s in cash”.  I also note the evidence that her employment was terminated as she wanted to be paid in cash.  There was also evidence from the Respondent that the Complainant was paid one week’s pay in June 2022 when the Respondent took back the business from the Contractor.  This week could be considered as wages due in the event that there was a transfer of business from the previous employer to the Respondent.  In the circumstances, I find that having terminated the Complainant’s employment, the Respondent was obliged to pay her one week’s notice.  I find the complaint to be well founded and I require the Respondent to pay to the Complainant the sum of €216.

CA-00053301-002   Organisation of Working Time Act 1997

I note the payslip submitted by the Respondent dated 23 September 2022 showing pay for 18 hours, i.e. one week’s pay.  The Respondent further submitted that payment for annual leave accrued was made to the Complainant in October 2022.  However, no actual evidence of payment made to her in October 2022 was produced.  I consider the payslip dated 23 September 2022 was payment for her final week’s work and she was still owed in or around one week’s holiday pay. I find her complaint to be well founded. I require the Respondent to pay to the Complainant the sum of €216.

CA-00053301-003   Terms of Employment (Information) Act 1994

The Respondent’s evidence here is that Manager Ms Q signed a contract for the Complainant but she refused to take it.

Section 3 (1) of the Terms of Employment (Information) Act provides

“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”…

In this case, I find as fact that a statement was not provided to the complainant.  I note the Respondent’s reliance for defence is on the Complainant not accepting the signed written contract.    However, as the law provides that the employer is obliged to give the written statement to the employee, I find that some method should have been employed, such as posting it to the Complainant’s address.  I find the complaint to be well founded.  In accordance with Section 7 of the Act, I require the Respondent to pay to the Complainant the sum of €216 compensation which I consider  just and equitable in all the circumstances.

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.

CA-00053301-001           Minimum Notice & Terms of Employment Act 1973

In accordance with the findings above, I have decided the complaint is well founded and I require the Respondent to pay to the Complainant the sum of €216.

CA-00053301-002           Organisation of Working Time Act 1994

In accordance with the findings above, I have decided that the complaint is well founded and I require the Respondent to pay to the Complainant the sum of €216.

CA-00053301-003           Terms of Employment (Information) Act 1997

In accordance with the findings above, I have decided that the complaint is well founded and I require the Respondent to pay to the Complainant the sum of €216 compensation.  

Dated:   12-07-23

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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