Complainant

Respondent

Parties

Clive  Reid

Macprend Limited T/A Hampton Floor Stores

Complainant

Respondent

Anonymised Parties

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Representatives

David Kearney BL instructed by Henry John Ward HJ Ward LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00047501-001

06/12/2021

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

CA-00047501-002

06/12/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00047501-003

06/12/2021

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

CA-00047501-004

06/12/2021

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

CA-00047501-005

06/12/2021

The Complainant commenced his employment as a Flooring Operative with the Respondent in August 2020 and was paid €6,066 per month gross (€4,000 net). He stated that he was summarily dismissed via text message on 11 June 2021 and did not receive his contractual notice pay or his holiday entitlements. He also alleged both that the contract of employment provided to him was missing many key details and that the Respondent reduced his pay without his consent.

The Complainant commenced his employment as a Flooring Operative with the Respondent in August 2020. He stated that the Respondent approached him in February/March 2021 and asked that he take a 50% pay cut for a few weeks. The Complainant stated that he agreed on the basis that it would be only for a few weeks and expected that his pay would be fully restored by April 2021. He was subsequently summarily dismissed via text message on 11 June 2021 and did not receive his contractual notice pay or his outstanding holiday entitlements. He also alleged that the contract of employment provided to him was missing many key details, such as the start date, rate of pay, job title and location as well as the start and finish times.

Despite having been notified of the time and date of the hearing, the Respondent did not attend to give evidence.

CA - 00047501-001:

This is a duplicate complaint and has been dealt with in the context of CA-00047501-004 below.

CA - 00047501-002:

THE LAW

The Terms of Employment (Information) Act 1994, section 3, sets out the basic terms of employment which the employer must provide to the employee in a written form within two months of starting the 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)      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 of, 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 –

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

m)    (ii pensions and pension schemes.,

n)      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,

o)      a reference to any collective agreements which directly affect the terms and conditions of 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.

The Act also requires this statement to be signed and dated by or on behalf of the employer and the employer is also required to retain a copy of this statement for the period of employment and for a period of 1 year after the employment ceases.

FINDINGS

It is the Complainant’s position that the written statement of his terms and conditions of employment he received was missing many details as required by the Terms of Employment (Information) Act 1994 outlined above. Specifically, he stated that the contract of employment provided to him was missing the start date, rate of pay, job title and location as well as the daily start and finish times. 

In the absence of any evidence to the contrary from the Respondent, I find that this complaint is well founded.

CA - 00047501-003:

The Law:

Section 19 (1) of the Organisation of Working Time Act states that:

“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)

The Workplace Relations Act 2015 at section 41, in relevant part, provides as follows

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

 8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

FINDINGS:

In accordance with section 41 (6) of the Workplace Relations Act 2015, I find that I can only consider the holidays that were not paid to the Complainant in the period from 7 June 2021 to 11 June 2021, the day on which his employment was terminated. While the Complainant’s representative stated that he should also accrue holiday pay for the one month’s period of notice which he was not paid, namely 11 June to 11 July 2021, I find that as he did not work in this period, he cannot accrue holidays for same.

Given the uncontradicted evidence of the Complainant, I find that he was not paid in respect of his annual leave entitlements for the period from 7 June 2021 to 11 June 2021 and that his complaint is therefore well founded.

CA - 00047501-004:

THE LAW

The Payment of Wages Act 1991 states at section 5 and 6 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

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

FINDINGS:

The Complainant stated in his evidence that he did not receive one month’s pay when his employment was terminated despite his contract of employment explicitly stating that he was entitled to such a payment. In the absence of any evidence to the contrary from the Respondent, I find that this complaint is well founded.

CA - 00047501-005:

The Payment of Wages Act 1991 states at section 5 as follows:

(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—

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,

The Workplace Relations Act 2015 at section 41, in relevant part, provides as follows

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

 8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

FINDINGS:

The Complainant stated that the Respondent approached him in February/March 2021 and asked that he take a 50% pay cut for a few weeks. The Complainant stated that he agreed on the basis that it was only for a few weeks and expected that his pay would be fully restored by April 2021 but claimed that this did not happen before his employment was terminated on 11 June 2021.

Based on the uncontradicted evidence of the Complainant, I find that the complaint is well founded because this reduction in his pay this represented an improper deduction in accordance with section 5 (2) of the Payment of Wages Act above. I also note however that I can only consider the deduction made in the period from 7 June 2021 to 11 June 2021, the day on which his employment was terminated, in accordance with section 41 (6) of the Workplace Relations Act 2015 referred to above.

CA - 00047501-001:

This is a duplicate complaint and has been dealt with in the context of CA-00047501-004 below.

CA - 00047501-002:

I find that this complaint is well founded as set out above. In deciding on what compensation to award, I have regard to the Labour Court decision in the case of Megan Hayes Kelly and Beechfield Private Homecare, DWT 1919, where the Complainant claimed that the Respondent was in breach of the Terms of Employment (Information) Act because there were omissions and errors in her contract of employment. In his determination on the case, the Chairman of the Court, considered the errors and omissions to be “at the serious end of the spectrum” and awarded the maximum of four weeks’ pay in redress.

As the omissions from the Complainant’s contract in the instant case are more serious than those in the above cited case, I must follow the authority of the Labour Court and make the maximum award in the within case. I therefore award the Complainant compensation of four weeks gross remuneration, namely €5,600.

CA - 00047501-003:

I have found that this complaint is well founded for the reasons set out above. As the Complainant did not receive his holiday pay for the cognisable period, namely 7 June to 11 June 2021, I make an award of €100 in respect of this complaint. This award includes an element of compensation.

CA - 00047501-004:

This complaint is well founded for the reasons set out above. As the Complainant’s net monthly pay was €4,000, I make an award of €4,000 net in respect of this complaint.

CA - 00047501-005:

I have found that the complaint is well founded for the reasons set out above. As the Complainant’s net pay was €4,000 per month, I find that his net weekly pay was €923.08. Given that his pay was reduced by 50%, I make an award of €461.54 net in respect of this complaint.