Complainant

Respondent

Parties

Maria  Ferreira

Recruitcare Hr Solutions Limited

Representatives

Alice Kavanagh North Dublin Citizens Information Service CLG

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00050607-001

13/05/2022

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

CA-00050607-002

13/05/2022

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

CA-00050607-003

13/05/2022

The Complainant in this matter worked for the Respondent Company for a period of 6 weeks in November /December 2021.

The Complainant submitted complaints alleging non-payment of wages, failure to pay the minimum wage and failure to pay outstanding holidays on the 13th of May 2022. She also submitted a separate identical set of complaints against Margaret Cleary, a Director of the Respondent and the Complainant’s primary point of contact with the Respondent.  This complaint is listed as ADJ-00038949 and both matters were heard together.

A hearing was held on the 14th of February 2023. The complainant indicated that she wished to proceed against the Respondent in this matter rather than the Respondent listed in ADJ-00038949

The Complainant attended and gave evidence under oath. The Complainant was represented by Alice Kavanagh of Citizen’s Information.

Lydia Byrne, an interpreter appointed by the WRC, assisted in translating the Complainant’s evidence under oath.

The Respondent did not attend the hearing. I am satisfied having reviewed the correspondence on file and the previous engagement between the parties, that they were on notice. Ms Kavanagh submitted the CRO details for the Respondent and their registered address is the address which the WRC wrote to on the 22nd of June 2022 notifying them of the complaint and again on the 11th of January 2023 notifying them of the WRC hearing.

Ms Kavanagh has further confirmed that she had sent her submissions directly to Ms Cleary at an email addresses that she had previously responded from.

CA-00050607-002

The Complainant was told about the Respondent company by a friend. She was told they needed someone to work in the office. She arranged to come in and meet Margaret Cleary, a director of the Respondent. She was interviewed and given a computer competency test to do. She was successful and was told to start the next day. She agreed a rate of €12 an hour with the Respondent.

She was employed for 3 days a week because she still had to attend college. Generally, she started at 8.30 am and finished at 6pm or 7pm with a 30 minute break. She confirmed that she was allowed take this break and not work through it.

The Respondent company hired and placed agency nurses and other healthcare workers. The Complainant’s duties involved the onboarding of agency staff. She checked applicant’s CV’s, did social media searches, reviewed immigration papers, and generally liaised with applicants who spoke Portuguese.

The Complainant was not given clear information about her expected pay date. She was under the impression that various onboarding and revenue measures were required before she could get paid. She expected that matters would be delayed until the December pay date but when it became clear she would not get paid then she suspected that she would not be paid for her work with the Respondent.  She left the Respondent’s service on 20th of December 2021. 

The Complainant continued to chase Ms Cleary for her outstanding wages. She met her in January and was offered €500 if she signed a compromise agreement. She refused as she wanted her full wages.

The Complainant provided emails from the Respondent where, after being contacted by Citizen’s Information, they assert the complainant was an intern or on unpaid work experience. The Complainant referred to text message exchanges which demonstrate that this is not the case and that she was hired to do a job and that Ms Cleary, was promising to pay her up until 29th of December 2021.

The Complainant is clear that she had applied to the Respondent to get a job and agreed a rate of pay and hours. The Respondent had only ever required her to do normal working tasks, she was not there for work experience. 

The Complainant worked at total of 154 hours for the 6 weeks that she was employed by the Respondent. For this she is owed €1848.

CA-00050607-001

This complaint under the Minimum Wage act was advanced as an alternative to the complaint under the Payment of Wages act above.  The Complainant’s representative argues that, if there is no breach of the Payment of Wages act concerning the Complainant’s period of employment, then there is certainly a breach of the Minimum Wage Act as the Complainant was paid nothing for her work.

CA-00050607-003

The Complainant was entitled to receive any outstanding annual leave on the cessation of her employment in December 2021. She did not.

The Respondent did not attend the hearing

The Complainant provided detailed evidence of the hours she worked, the breaks taken and the duties she carried out during the working day.

This oral evidence together with the text messages provided demonstrate that a contract of employment existed between the parties and that the agreed rate of pay was €12 per hour and that the Complainant would work three days a week for the Respondent. She worked 5 full weeks, averaging approximately 27 hours per week and then one day on the 6th week after which she resigned.

The Complainant’s working hours came to 156 over the 6 week period.  However the Complainant’s own evidence is that she received a 30 minute unbroken break every day she worked. This brings the total working hours to 146.

I am satisfied that the Respondent was on notice of the hearing and chose not to attend or seek a postponement.

CA-00050607-002

The failure to pay the Complainant her outstanding wages constituted a prohibited deduction as per Section 5 of the Payment of Waged Act. 

I calculate the total wages owing to the Complainant as €1752.

CA-00050607-003

The Complainant was entitled to receive any outstanding annual leave on the cessation of her employment in December 2021 as provided for under section 23 of the Organisation of Working Time Act 1997.

Section 27 (3) as amended provides that:

A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision

shall do one or more of the following, namely:

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.

I calculate the Complainant’s average weekly pay based off the 5 full weeks she worked as approximately €327 per week. I also calculate that her accrued annual leave at the time of her resignation would have only come to approximately 11 and half hours pay or €138.

Having regard to all of the circumstances, in particular the uncontroverted evidence of the Complainant that the Respondent, through misrepresentations, got her to work a number of weeks without providing pay and other core entitlements, such as annual leave, and has since refused to compensate her. I am of the view that it is just and equitable to award compensation of 4 weeks pay or €1308 for this breach.   

CA-00050607-001

I find that this complaint fails.

CA-00050607-001

I find that this complaint in not well founded.

CA-00050607-002

I find that this complaint is well founded and direct the Respondent to pay to the Complainant compensation in the amount of €1752.

CA-00050607-003

I find that this complaint is well founded and require the Respondent to pay to the Complainant compensation in the amount of €1308.