Complainant

Respondent

Parties

Ayiesha Marron-Boyle

Izzy Limited trading as Victory's Centra

Representatives

Self-Represented

Self-Represented

Act

Complaint Reference No.

Date of Receipt

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

CA-00051819-001

24/07/2022

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

CA-00051819-002

24/07/2022

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

CA-00051819-004

24/07/2022

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

CA-00051819-005

24/07/2022

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

CA-00051819-006

24/07/2022

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

CA-00051819-008

24/07/2022

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

CA-00051819-010

24/07/2022

The Complainant commenced employment with the Respondent on 25th April 2022. The Complainant was a part-time employee, typically working 25.5 hours per week and receiving €267.50 in payment per week. The Complainant’s tenure was short, with the employment being terminated on 24th July 2022.

On 24th July, the Complainant referred various complaints to the Commission. Herein the Complainant alleged various breaches of working time legislation, an illegal deduction from her wages and a failure to provide a statement of terms. By response, the Respondent accepted some of the breaches alleged by the Complainant and denied others, particularly in relation to the provision of a statement of terms.

A hearing in relation to these matters was convened for, and finalized on, 6th June 2023. This hearing conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing.

At the outset of the hearing, the Respondent made an application to amended the complaint form to implead their legal identity, as opposed to their trading name, as the Respondent. This amendment was made with the Complainant’s consent. The Complainant gave direct evidence in support of her complaint, while a Managing Director of the Respondent gave evidence in defense. All evidence was given under affirmation and was opened to cross-examination by the opposing side.

No preliminary issues as to my jurisdiction to hear the complaint were raised at any stage of the proceedings. The complaints will be addressed individually below, in order of the narrative presented at the hearing.

CA-00051819-005 Complaint under the Terms of Employment (Information) Act

The Complainant alleged that she did not receive a statement of terms of employment. Regarding the statement produced by the Respondent, the Complainant stated that she did not have sight of the same during her engagement with the Respondent.

CA-00051819-006 Complaint under the Terms of Employment (Information) Act

The Complainant stated that her hours were cut from an agreed 40 hours per week to 25 hours per week. She stated that this was done without any form of written notice or consultation.

CA-00051819-001 Complaint under the Organisation of Working Time Act

The Complainant stated that she received no Sunday premium. Regarding the Respondent’s submission that her rate of pay related was a composite to include such a rate, the Complainant stated that she received minimum wage, with no such rate included.

CA-00051819-004 Complaint under the Organisation of Working Time Act

The Complainant stated that she frequently did not receive her daily rest period as prescribed by the Act. In evidence the Complainant directly referred to numerous instances where she finished work at 10.30pm and returned to work the following morning at 6.00am.

CA-00051819-002 Complaint under the Payment of Wages Act

The Complainant alleged that her wages were frequently underpaid, sometimes by as much as 3.5 hours of work. She stated that she did not raise this issue as she was concerned regarding the potential consequence arising from the same. The Complaint further submitted that she was once paid two weeks late.

CA-00051819-008 Complaint under the Payment of Wages Act

The Complainant alleged that she was offered the position of supervisor but did not receive any increase in pay. The Complainant further submitted that she did not receive any payment for training undertaken.

CA-00051819-009 Complaint under the Payment of Wages Act

The Complainant alleged that she did not receive payment for attending jury duty on a particular day. In this regard, she submitted that she informed that Respondent of the same in advance and had a statutory entitlement to be paid in relation to the same.

CA-00051819-005 Complaint under the Terms of Employment (Information) Act

The Respondent submitted that they provided a statement of terms for the employee, and produced a copy of the same at the hearing. In answer to a question posed by the Adjudicator, the Respondent accepted that the same was not signed by the Complainant and that there was no proof of receipt in relation to the same.

CA-00051819-006 Complaint under the Terms of Employment (Information) Act

The Respondent submitted that the Complainant was not promised full-time hours at any stage of her employment. Rather the Complainant’s hours changed depending on the needs of the business at the relevant time. In this regard, the Respondent opened various rosters displaying the variety of the Complainant’s weekly working hours.

CA-00051819-001 Complaint under the Organisation of Working Time Act

The Respondent accepted that the Complainant received the statutory minimum wages and, as a consequence of the same, could not receive a Sunday payment. In this respect, this particular complaint was conceded by the Respondent.

CA-00051819-004 Complaint under the Organisation of Working Time Act

The Respondent further conceded that the Complainant occasionally did not receive her daily rest period. In evidence the Respondent stated that this was dure to staffing shortage that existed at the relevant time.  

CA-00051819-002 Complaint under the Payment of Wages Act

The Respondent absolutely denied that the Complainant did not receive payment for any hours worked. In this regard, the Respondent stated that when the Complainant worked for over six hours she would receive a 30 minute, unpaid, break. He submitted that this may be the cause of the Complainant’s confusion in this regard. He further submitted that all outstanding holiday pay was discharged to the Complainant and exhibited the relevant payslip in this regard.

CA-00051819-008 Complaint under the Payment of Wages Act

The Respondent submitted that while the Complainant had some supervisory duties she was not appointed to that role or ever promised a pay increase in that regard. The Respondent stated that the Complainant was asked to complete some online training programs in advance of her commencement date. As these were not completed, she was asked to complete the same in the course of her employment.

CA-00051819-009 Complaint under the Payment of Wages Act

The Respondent accepted the Complainant’s position regarding the day of jury duty and undertook to discharge the day’s pay outstanding.

CA-00051819-005 Complaint under the Terms of Employment (Information) Act

Section 3(1) of the Act (as amended) provides that,

“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”

Section 3(5) of the Act (as amended) provides that,

“A copy of a statement furnished under this section shall be retained by the employer during the period of the employee's employment and for a period of 1 year thereafter.”

A conflict of evidence arises in relation to this particular complaint, with the Respondent submitting that the Complainant received such a statement, and the Complainant subsequently denying sight of the same. In this regard, I note that Section places on onus of proof on the Respondent to “give or cause to be given to the employee a statement in writing”. In circumstances whereby the Respondent has failed to retain any form of documentary proof of the Complainant’s receipt of the contract, I prefer the evidence of the Complainant and find that this particular complaint is well founded.

CA-00051819-006 Complaint under the Terms of Employment (Information) Act

Regarding this particular complaint, the Complainant has alleged that her hours of work were amended without her consent and without notification of a change of the same in writing.

In this regard, Section 3(1)(i) provides that statement must refer to, “any terms or conditions relating to hours of work.” Section3(1A)(e)(i)of the Act further provides that an employer must provide a statement of “the number of hours which the employer reasonably expects the employee to work (i) per normal working day, and (ii) per normal working week.”

Notwithstanding the foregoing, and having regard to the decision above, the Complainant was not provided with a written statement at the outset of her employment. Having regard to the same, the Respondent cannot be twice penalised for failing to provide a written statement and then for failing to amend, in writing, the non-existent statement.

Having regard to the foregoing, I find that this complaint is not well-founded.

CA-00051819-001 Complaint under the Organisation of Working Time Act

In relation to this particular complaint, the Complainant alleged that she did not receive a Sunday premium. At the hearing of the matter, the Respondent accepted that this was the case.

Having regard to the foregoing, I find that this complaint is well-founded.

CA-00051819-004 Complaint under the Organisation of Working Time Act

In relation to this particular complaint, the Complainant alleged that she did not receive a daily rest period. Again, the Respondent conceded that this was the case.

Having regard to the foregoing, I find that this complaint is well-founded.

CA-00051819-002 Complaint under the Payment of Wages Act

The Complainant alleged that she was underpaid wages and that she had not received correct holiday pay. At the hearing of the matter, the Complainant accepted that she had belatedly received the outstanding holiday payment.

Regarding the alleged non-payment of wages, the Complainant submitted that her weekly payment would frequently be incorrect, with several hours’ worth of payment being unaccounted for. In denying this complaint, the Respondent submitted that the Complainant was paid for all hours worked and that the Complainant’s confusion may have arisen from the fact that she received an unpaid lunch break on certain occasions.

In this regard, Section 1 of the Payment of Wages Act 1991, defines “wages” as “any sums payable to the employee by the employer in connection with his employment, including…any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise”.

In the matter of Marek Balans v Tesco Ireland Ltd [2019 No. 83 MCA], McGrath J stated that when considering complaints under the present Act,

“Central to the Court’s analysis must be the concepts of wages properly payable and the circumstances in which if there is a deficiency in respect of those such payments”.

Regarding the instant case, the Complainant’s allegation is that she was frequently underpaid. In this regard it is noted that the Complainant did not set out the exact amount of the alleged deduction, the dates these alleged deductions related to and the dates on which she suffered an alleged deduction to her wages. As a consequence of the foregoing, the Respondent cannot defend the specifics of the allegation, other that to simply deny the same in a general sense.

Having regard to the foregoing, I find that this complaint is not well-founded.

CA-00051819-008 Complaint under the Payment of Wages Act

The Complainant alleged that she was promoted to the position of supervisor but did not receive any pay increase on foot of the same. In denying this allegation, the Respondent submitted that the Complainant did not receive any such promotion and did not had no entitlement, contractual or otherwise, to a higher rate of pay.

Having regard to the decision in Balans (referenced above) it is apparent that while the Complainant assumed at least some supervisory roles in the course of her employment, she did not receive any undertaking as to an increase in pay.

In relation to the alleged non-payment of training time, the Complainant has not identified the time or dates to which this alleged non-payment relates.

Having regard to the foregoing, I find that this complaint is not well-founded.

Having regard to the foregoing, I find that this complaint is not well-founded.

CA-00051819-009 Complaint under the Payment of Wages Act

The Complainant alleged that she was not paid for a day of jury duty in contravention of the Act. By response, the Respondent accepted that this was the case and undertook to discharge payment for this date. Following the hearing, the Respondent issued confirmation that this payment was made to the Complainant.

Having regard to the foregoing I find that no further wages are properly payable to the Complainant and as a consequence this complaint is not well-founded.

CA-00051819-005 Complaint under the Terms of Employment (Information) Act

I find that the complaint is well-founded and consequently the Complainant’s application succeeds.

Regarding redress, Section 7 of the Act (as amended) empowers me to award compensation not exceeding four weeks remuneration in respect of breach of the Act. Having regard to the totality of the evidence presented, I award the Complainant the sum of €802.50, or the equivalent of three weeks’ remuneration, in compensation.

CA-00051819-006 Complaint under the Terms of Employment (Information) Act

I find that this complaint is not well-founded.

CA-00051819-001 Complaint under the Organisation of Working Time Act

Section 27 of the Organisation of Working Time Act 1997 (as amended) provides that a decision of an Adjudication Officer shall do one or more of the following:

1.       Declare the complaint was or was not well founded;

2.       Require the Employer to comply with the relevant provision;

3.       Require the employer to pay to the employee compensation of such amount as is just and equitable having regard to all the circumstances but not exceeding 2 years remuneration.

In light of the foregoing I find that the complaint as presented to me is well founded. Regarding redress, I direct that the Respondent should pay the Complainant the sum of €500 in compensation.

CA-00051819-004 Complaint under the Organisation of Working Time Act

I find that this complaint is well-founded. Having regard to the totality of evidence presented, I direct that the Respondent should pay the Complainant the sum of €500 in compensation.

CA-00051819-002 Complaint under the Payment of Wages Act

I find that this complaint is not well-founded.

CA-00051819-008 Complaint under the Payment of Wages Act

I find that this complaint is not well-founded.

CA-00051819-009 Complaint under the Payment of Wages Act

I find that this complaint is not well-founded.