Complainant

Respondent

Parties

Rebecca  O'Sullivan

Justin Casey Ltd

Complainant

Respondent

Anonymised Parties

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Representatives

  Self-represented

 Non-attendance

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-00057199-001

12/06/2023

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

CA-00057199-002

12/06/2023

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

CA-00057199-003

12/06/2023

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

CA-00057199-004

12/06/2023

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

CA-00057199-005

12/06/2023

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

CA-00057199-006

12/06/2023

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

CA-00057199-007

12/06/2023

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00057199-008

12/06/2023

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

CA-00057199-009

12/06/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012

CA-00057199-010

12/06/2023

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The respondent did not attend the hearing of this matter. The respondent is still trading according to the Companies Registration Office (CRO).  Notification was sent to the correct address listed with the CRO. In addition to that, the hearing concierge made a number of attempts, prior to and on the day of the hearing, to contact the respondent by phone, the attempts went unanswered. The phone number was correct as per the current business listing for the respondent. The notification of the complaint and the hearing notification were sent to the official listed address. Therefore, I am satisfied that the respondent was provided with appropriate notice of the hearing of this matter. The hearing preceded in the absence of the respondent.

The complainant gave her evidence under affirmation.

CA-00057199-001 – Payment of Wages, underpayment

The complainant submitted that her employer has not paid her or has paid her less than the amount due to her.

CA-00057199-002 – Payment of Wages, notice payment

The complainant submitted that she did not receive the appropriate payment in lieu of notice on the termination of her employment.

CA-00057199-003 – Organisation of Working Time Act, leave entitlement

The complainant submitted that she did not receive her paid annual leave entitlement accrued while on maternity leave.

CA-00057199-004 – Organisation of Working Time Act, annual leave compensation

The complainant submitted that she was not compensated for the loss of her annual leave entitlement upon leaving employment.

CA-00057199-005 – Organisation of Working Time Act, Public Holiday compensation

The complainant submitted that she was not compensated for the loss of her Public Holiday entitlement upon leaving employment.

CA-00057199-006 – Terms of Employment Information Act, statement of terms

The complainant submitted that she did not receive statement in writing of her terms of employment in accordance with the Act.

CA-00057199-007 – Terms of Employment Information Act, change of terms

The complainant submitted that she was not notified in writing of a change to her terms of employment.

CA-00057199-008 – Road Transport Regulations

The complainant submitted that her employer was not keeping statutory employment records in accordance with the Regulations.

CA-00057199-009 – Terms of Employment Information Act, core terms

The complainant submitted that she did not receive a statement of her core terms in writing as required by the Act.

CA-00057199-010 - Protection of Employees (Temporary Agency Work) Act

The complainant submitted that she was penalised or threatened with penalization by her employer exercising rights under the Protection of Employment (Temporary Agency Work) Act.

Complainant testimony:

The complainant submitted that she started working for the respondent on 29 January 2019 and she finished up on 2 February 2023 when she sent in her resignation at the end of her maternity leave. She said she was earning around €9 per hour but that her contract said she was meant to be earning €10 per hour. She stated that she was only provided with a contract on 15 July 2022 but not when she began work. She stated that the respondent indicated to her at that time that she had to sign her contract for them to sign her maternity benefit application forms. She indicated that she had repeatedly sought the signature on this application, and it was only when she indicated that she was going to take matters further that they signed the papers.

The complainant indicated that a fight had happened at her house at her child’s christening party between her employer and his partner. She indicated that thereafter her employer treated her very poorly, refusing to talk to her and that other staff followed her employers lead and began to ignore her too. She stated that the situation got so bad that her sister had to raise it with her employer and although her employers partner changed how he dealt with her, her employer did not.

The complainant stated that her contractual weekly hours were 41 but that her contract only indicated a payment of €9.63 per hour.

As regards the end of her employment, the complainant indicated that she resigned on 2 February 2023 when her maternity leave ended.  The complainant stated that upon her resignation she was not paid for the 10 days holidays and five bank holidays that were owing to her at that point in time. She confirmed that she did not receive a contract upon starting employment and only received it on 15 July 2022 in response to a request that her employer sign her maternity benefit forms. The complainant confirmed that she was employed as a junior stylist until February 2022 when she went from being a junior stylist to being a stylist.  This was not noted in her contract.

The complainant confirmed that she was not employed in a driving capacity. She also confirmed that she was not an employee of any agency.

When recapping her evidence, the complainant confirmed that in relation to the holiday and public holiday payments she contacted her employer to have them paid but never received any response from him.  She confirmed that according to the two payslips she received while in employment with the respondent, she earned €395.76 for a 41-hour week.

The respondent did not attend the hearing of this matter.

The complainant gave her evidence in a clear and concise fashion and responded to the all the questions/clarifications of the Adjudicator in a straightforward manner, even when the answers did not necessarily cast her in a perfect light.  Accordingly, I found the complainant to be a credible witness.

In terms of most workers, Section 41 (6) and (8) of the Workplace Relations Act 2015 governs the presentation of complaints to the Director General of the WRC.  The relevant sections state 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.

Section 6 provides a six-month window within which to present a complaint and section 8 extends that window to 12 months where there is reasonable cause.  Having regard to the present situation, I am satisfied that where an employer is not providing written payslips and employment documents in a timely fashion (or at all) and does not respond to legitimate requests for information and/or payment, it is reasonable to extend the window for receipt of complaints to 12 months as provided for in the Workplace Relations Act.

CA-00057199-001 – Payment of Wages Act, underpayment

The complainant submitted that she was under paid less than was due to her but was unsure what she should have been paid as she did not receive regular payslips.  At the very least the complainant was entitled to receive the minimum wage applicable to the time she was in receipt of her wages.  She gave evidence that according to the only available payslips she was paid €9.65.  The respondent did not attend the hearing and the complainant is a credible witness.  Therefore, I am satisfied that the complainant is entitled to be paid the underpayment as submitted.

It appears from the evidence before me that the complainant may have been underpaid for a long period during her employment.  However, her last day of work was 16 July 2022.  Under the Workplace Relations Act, I am precluded from looking back beyond 13 June 2022 in respect of complaints before me.  There is no Minimum Wage complaint before me.  However, given that the Government introduced the revised minimum wage of €10.50 on 1 January 2022, it is reasonable to conclude that any inadvertent underpayment of wages accruing from this date up to an employee’s date of departure would be regularised by a prudent employer.  The shortfall in the complainants’ wages were not regularised before her last actual day before her departing on Maternity Leave.  This leaves a shortfall in wages due to the complainant of €34.74 per week owing to the complainant at the date of her final actual working day.  This amounts to €1007.46 (€37.74 x 29) which is properly due to the complainant.

CA-00057199-002 – Payment of Wages Act, payment in lieu of notice

The complainant confirmed that she resigned from her employment.  No payment in lieu of notice is payable to the complainant in the circumstances and the Act was not breached.

CA-00057199-003 – Organisation of Working Time Act, Annual leave and Public Holiday entitlement

The complainant submitted that she was not paid for ten days annual leave and five days leave in respect of Public Holidays, accruing to her while she was on Maternity Leave.  Having regard to the evidence provided by the complainant in relation to this matter, I am satisfied that these entitlements accrued.  Therefore, I find that the complainant is well founded.

CA-00057199-004 – Organisation of Working Time Act,

The complainant submitted that she was not paid in lieu in respect of ten days annual leave upon resignation from her employment.  Having regard to the evidence provided by the complainant in relation to this matter, I find that the complainant is well founded.  I note that the complainant sought this payment from the respondent, but her query went unanswered.

CA-00057199-005 – Organisation of Working Time Act,

The complainant submitted that she was not paid in lieu relating to five days Public Holidays upon resignation from her employment.  Having regard to the evidence provided by the complainant in relation to this matter, I find that the complainant is well founded. I note that the complainant sought this payment from the respondent, however, her query was not answered.

CA-00057199-006 – Terms of Employment Information Act, statement of terms

The complainant outlined that she only received her contract of employment in response to seeking the signature of her maternity benefit forms.  She outlined that it did not contain her correct rate of pay nor her appropriate title. Having regard to the evidence provided by the complainant in relation to this matter, I find that the complainant is well founded.

CA-00057199-007 – Terms of Employment Information Act, change in terms

The complainant outlined that she only received her contract of employment in response to seeking the signature of her maternity benefit forms.  She outlined that it did not refer to her correct title which had changed in February. The complainant terms of employment changed in February 2022 which is outside the timeframe comprehended by the Act.

CA-00057199-008 – Road Transport Regulations

At the start of the hearing, the complainant confirmed that she did not work in transport activities.  Accordingly, I find that this complaint is not well founded.

CA-00057199-009 – Terms of Employment Information Act, core terms

The complainant outlined that she only received her contract of employment in response to seeking the signature of her maternity benefit forms.  She outlined that it did not contain her correct rate of pay nor her appropriate title. Having regard to the evidence provided by the complainant in relation to this matter, I find that the complainant is well founded.

CA-00057199-010 - Protection of Employees (Temporary Agency Work) Act

At the start of the hearing, the complainant confirmed that she not employed in or through an employment agency.  Accordingly, I find that this complaint is not well founded.

CA-00057199-001 – Payment of Wages Act, underpayment

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the Act was not complied with.  I direct the respondent to pay the complainant compensation of €1007.46 which I consider to be reasonable in the circumstances.

CA-00057199-002 – Payment of Wages Act, payment in lieu of notice

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the Act was not breached on this occasion.

CA-00057199-003/004/005 – Organisation of Working Time Act,

Having regard to all the written and oral evidence presented in relation to this matter, my decision is that the complaints are well founded.  I require the employer to pay the complainant compensation in the amount of €6022.90 which I consider just and equitable having regard to all the circumstances.  This amount equates to 13 weeks wages at the minimum wage level applicable when the complainant submitted her resignation in 2023.

CA-00057199-006/009 – Terms of Employment Information Act, statement of terms/core terms

Having regard to all the written and oral evidence presented in relation to this matter, my decision is that the complaints are well founded, the complainant was never provided with an accurate note in writing of her terms of employment.  I require the employer to pay the complainant compensation in the amount of €1853.20 which I consider just and equitable having regard to all the circumstances.  This amount equates to 4 weeks wages at the minimum wage level applicable when the complainant submitted her resignation in 2023.

CA-00057199-007 – Terms of Employment Information Act, change in terms

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the complaint has been presented outside of the timeframe comprehended in the Act.

CA-00057199-008 – Road Transport Regulations

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that this complaint is not well founded.

CA-00057199-010 - Protection of Employees (Temporary Agency Work) Act

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that this complaint is not well founded.

Time Limits - Payment of Wages – Act not complied with – compensation - Organisation of Working Time – well founded complaints - compensation- Terms of Employment (Information) – two well founded complainants – one complaint out of time - compensation