ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00038101

Parties:

	Complainant	Respondent
Parties	Ita Fahey	Tom Meehan and Sons Ltd

Representatives

Self-Represented

Dermot Duignan HR Consultant

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00049473-001	30/03/2022
Request for an investigation by a Workplace Relations Commission Inspector under the Organisation of Working Time Act, 1997	CA-00049473-003	30/03/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00049473-004	30/03/2022
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973	CA-00049473-006	30/03/2022
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973	CA-00049473-007	30/03/2022

Date of Adjudication Hearing: 22/05/2023

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 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.

In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021 the Parties were informed in advance that the Hearing would be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for. The Hearing too place completely in public and the required Affirmation / Oath was administered to all witnesses. The legal perils of committing Perjury were explained to all parties. Full cross examination of Witnesses was allowed

Background:

The Complainant submitted complaints under the Payment of Wages Act relating to deductions from pay, under the Terms of Employment (Information) Act that she had not received written terms of employment within the prescribed two month period, a claim under the Organisation of Working Time Act relating to public holidays and a claim under the Minimum Notice and Terms of Employment Act that she had not received the statutory minimum notice when her employment ceased.

Summary of Complainant’s Case:

The Complainant was employed as a Deli Assistant from February 1st 2022 to March 15th 2022 and lodged a number of complaints with the WRC. The two Complaints under the Minimum Notice and Terms of Employment Act 1973 were duplicate complaints. At the Hearing the Complainant gave evidence that her complaints were mainly about her treatment while working with the Respondent and the lack of training she received. The Complainant advised she was an honest, trustworthy and reliable employee. The Complainant advised she was told she would receive training but did not receive same. She advised two staff left during the period and she had to cover for them. The Complainant advised that the deduction for a uniform was not advised to her and she was told she had to wear black shoes and an amount of 62.77 Euros was deducted from her wages when she ceased employment. She advised this was an illegal deduction and that some other staff were allowed to work without black shoes and this was discriminatory. She advised there were no complaints about her work. She advised that when her Supervisor went on their planned break she had to cover the Deli. The Complainant advised she never received a statement of terms and employment and was told by the Interviewer when she applied for the job she was “the same age as his mother” and felt the Interviewer had no right to say this. The Complainant advised she still did not know why she was left go from the job and wanted answers to that question. The Complainant advised she had been paid for the Bank Holidays due to her but that it took over a year for the Respondent to pay what was due to her and she queried why it took so long for the Respondent to do the right thing. The Complainant advised she was not treated with the dignity she deserved and was upset and distressed by the experience of working for the Respondent. The Complainant advised she was shouted at and pushed while employed. The Complainant advised she was now happily employed elsewhere for nearly a year.

Summary of Respondent’s Case:

The Respondent Representative confirmed the Complainants employment from 31/1/2022 to 15/3/ 2022 where she reported to the Deli Manager. The Representative stated the Store Manager printed and gave the Complainant her starter pack on 9/2/2022 consisting of her contract of employment for the Complainant to read and return. Also included in the starter pack were the Handbook, Job Description and uniform policy. The Representative stated that the Complainant was informed by the Deli Manager on 3/3/2022 that she was not working out and that before the Manager could inform the Complainant she could work out a week the Complainant walked out. The Representative confirmed that the public holidays due had been paid.

Findings and Conclusions:

The Complainant set out a variety of issues to do with her employment and wanted all these issues addressed. However, the complaint forms specified four particular complaints and the Adjudicator is limited by law to considering only any specific breaches of the Acts under which the complaints were made. I advised the Complainant of this during the Hearing.

From the payslips submitted by the Complainant she earned an average of 170 Euros per week. In total, 10 Euros was deducted for her uniform and 62.77 Euros was deducted for shoes.

Payment of Wages complaint

Complaint Number CA-00049473-001 was under the Payment of Wages Act 1991 and related to improper deductions from pay. The relevant sections of the Act are as follows.

“5.—(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

(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.

(3) (a) An employer shall not receive a payment from an employee in respect of a matter referred to in subsection (2) unless, if the payment were a deduction, it would comply with that subsection.

(b) Where an employer receives a payment in accordance with paragraph (a) he shall forthwith give a receipt for the payment to the employee.

(4) A term of a contract of employment or other agreement whereby goods or services are supplied to or provided for an employee by an employer in consideration of the making of a deduction by the employer from the wages of the employee or the making of a payment to the employer by the employee shall not be enforceable by the employer unless the supply or provision and the deduction or payment complies with subsection (2).

(5) Nothing in this section applies to—

(a) a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, where—

(i) the purpose of the deduction or payment is the reimbursement of the employer in respect of—

(I) any overpayment of wages, or

(II) any overpayment in respect of expenses incurred by the employee in carrying out his employment,

made (for any reason) by the employer to the employee, and

(ii) the amount of the deduction or payment does not exceed the amount of the overpayment,

(b) a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, in consequence of any disciplinary proceedings if those proceedings were held by virtue of a statutory provision, or

(c) a deduction made by an employer from the wages of an employee in pursuance of a requirement imposed on the employer by virtue of any statutory provision to deduct and pay to a public authority, being a Minister of the Government, the Revenue Commissioners or a local authority for the purposes of the Local Government Act, 1941 , amounts determined by that authority as being due to it from the employee, if the deduction is made in accordance with the relevant determination of that authority, or

(d) a deduction made by an employer from the wages of an employee in pursuance of any arrangements—

(i) which are in accordance with a term of a contract made between the employer and the employee to whose inclusion in the contract the employee has given his prior consent in writing, or

(ii) to which the employee has otherwise given his prior consent in writing,

and under which the employer deducts and pays to a third person amounts, being amounts in relation to which he has received a notice in writing from that person stating that they are amounts due to him from the employee, if the deduction is made in accordance with the notice and the amount thereof is paid to the third person not later than the date on which it is required by the notice to be so paid, or

(e) a deduction made by an employer from the wages of an employee, or any payment received from an employee by his employer, where the employee has taken part in a strike or other industrial action and the deduction is made or the payment has been required by the employer on account of the employee's having taken part in that strike or other industrial action, or

(f) a deduction made by an employer from the wages of an employee with his prior consent in writing, or any payment received from an employee by an employer, where the purpose of the deduction or payment is the satisfaction (whether wholly or in part) of an order of a court or tribunal requiring the payment of any amount by the employee to the employer, or

(g) a deduction made by an employer from the wages of an employee where the purpose of the deduction is the satisfaction (whether wholly or in part) of an order of a court or tribunal requiring the payment of any amount by the employer to the court or tribunal or a third party out of the wages of the employee.

(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.”

The Complainant denied she ever received a contract of employment. The Respondent Representative in a written pre-Hearing submission provided a copy of a contract of employment and also provided sight of a contract of employment at the Hearing. None of the contracts were signed by either party and most noticeably differed in that the contract presented at the Hearing had a start date in the contract whereas the contract supplied in the Respondent pre-Hearing submission did not have any start date in the contract. This disparity obviously raises questions about the authenticity of the contracts. Having considered the issue, I find I prefer the Complainants versions of events that she did not receive a contract of employment. The implication of this is there was no written agreement to deduct from wages any monies for either an outfit or the black shoes. As a consequence, the deductions made by the Respondent were illegal under the Act and the Complainant is entitled to a refund of 72.77 Euros.

Organisation of Working Time complaint

Complaint Number CA-00049473-003 was under the Organisation of Working Time Act 1997 and related to the payment of Public Holiday pay. The Parties agreed at the Hearing the public holiday pay due had been paid (albeit belatedly) and this complaint is therefore not well founded.

Terms of Employment (Information) Act complaint

Complaint Number CA-00049473-004 was under the Terms of Employment (Information) Act 1994 and related to the Complainant not receiving her terms and conditions of employment in writing within two months of commencing employment. The Complainant sought to expand this out at the Hearing to her working conditions and terms but this is not an issue I can deal with under the complaint as presented or under the Act. Section 3 of the Act states

“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—

(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, 1963 ),

(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) 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,

(g) the rate or method of calculation of the employee's remuneration,

(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.

(2) A statement shall be given to an employee under subsection (1) notwithstanding that the employee's employment ends before the end of the period within which the statement is required to be given.”

4) A statement furnished by an employer under subsection (1) shall be signed and dated by or on behalf of the employer.

As Section 3 (2) and 3(4) of the Act has not been complied with by the Respondent (based on the contractual situation analysis above in the Payment of Wages complaint) I find in favour of the Employee. The maximum award under Section 7 of the Act is 4 weeks pay and I award the Complainant four weeks average pay totalling 680 Euros..

Minimum Notice and Terms of Employment complaints

Complaint Number CA-00049473-006 under the Minimum Notice and Terms of Employment Act. Section 4 of the Minimum Notice and Terms of Employment Act, 1973 sets out the minimum notice period as follows: “(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.” As the Complainant did not have the required continuous service of thirteen weeks or more she is statute barred from benefiting from the Act and her complaint is therefore not well founded.

The complaint number CA-00049473-007 under the Minimum Notice and Terms of Employment Act 1973 is a duplicate of CA-00049473-006 and therefore statute barred and not well founded.

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.

I find the complaint under the Payment of Wages Act 1991 is well founded and award the Complainant 72.77 Euros. (CA-00049473-001)

I find the complaint under the Organisation of Working Time Act 1991 is not well founded. (CA-00049473-003)

I find the complaint under the Terms of Employment (information) Act 1994 is well founded and award the Complainant 680 Euros. (CA-00049473-004)

I find the complaint under the Minimum Notice and Terms of Employment Act 1973 is statue barred and not well founded. (CA-00049473-006)

I find the complaint under the Minimum Notice and Terms of Employment Act 1973 is statute barred and not well founded. (CA-00049473-007)

Dated: 8th of June 2023.

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Key Words:

Terms of Employment