Complainant

Respondent

Parties

Brendan  Kelly

Dalcassian Wines & Spirits Ltd Dalcassian Wines & Spirits

Representatives

Dermot Maguire People First HR Ltd

 No Appearance

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00049040-001

07/03/2022

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

CA-00049040-002

07/03/2022

The Complainant was employed by the Respondent as an Account Manager from the 1st November 2021 until the 28th February 2022. The Complainant’s gross salary was €36,000.00 per annum, which equates to €692.31 per week, and he worked 40 hours per week. On the 7th March 2022 the Complainant raised a complaint that he did not received a statement of his core terms of employment in writing and that despite repeated requests he did not receive a statement of his terms and conditions of employment and a complaint that he did not receive his full paid annual leave entitlement. The Complainant sought adjudication under Section 7 of the Terms of Employment (Information) Act 1994 and Section 27 of the Organisation of Working Time Act 1997.

CA-00049040-001 – Terms of Employment (Information) Act 1994

The Complainant gave evidence that he was employed by the Respondent as an Account Manager from the 1st November 2021 until the 28th February 2022.

The Complainant submitted that he was employed under a contract of service with the Respondent and that he devoted all of his working time to his employment with the Respondent. The Complainant gave evidence that he did not receive a statement of his core terms of employment in writing and that despite repeated requests he did not receive a statement of his terms and conditions of employment or a contract of employment upon or after commencement of employment with the Respondent. The Complainant gave evidence that as a result of not being furnished with a statement in writing setting out his terms and conditions of employment he encountered unnecessary challenges during the course of his employment with regard to his job title, job description, probationary period, pay, expenses and allowances and that when he sought to raise these issues with the Respondent he was treated in a denigrating way.

CA-00049040-002 – Organisation of Working Time Act 1997

The Complainant gave evidence that he was employed by the Respondent as an Account Manager from the 1st November 2021 until the 28th February 2022 and that during the course of his employment with the Respondent he did not take any annual leave and that upon the termination of his employment the Respondent arbitrarily calculated his outstanding annual leave entitlement.

The Complainant stated that he did not receive a contract of employment or statement of his terms and conditions of employment or any other documentation setting out his annual leave entitlement and/or any days designated by the Respondent as mandatory annual leave days nor was he ever consulted with regarding annual leave but that if the Respondent was going to seek to oppose mandatory annual leaves days this should have been stipulated in the contract of employment or statement of terms and conditions of employment or an annual leave policy and it was not.

He stated in evidence that at no time was it communicated to him that the 24th December 2021 and 31st December 2021 were mandatory annual leave days. The Complainant stated in evidence that the nature of the Respondent’s business and his role as an Account Manager necessitated him working throughout the festive period and in particular the days that public houses were open over the festive period and that it was common practice in the industry to be working on Christmas Eve and New Year’s Eve in order fulfil orders or take new orders.

The Complainant gave evidence that following the termination of his employment he was not furnished with any documentation which was consistent with the absence of any of paperwork from the beginning to the end of his employment but that at the date of the termination of his employment he had accrued an entitlement to 7 days annual leave.

It was submitted on behalf on behalf of the Complainant that a reasonable employer would have sent a letter to the Complainant at the end of his employment setting out in writing any outstanding monies due and owing to him to include the amount payable in respect of his final month’s salary, notice pay and holiday pay however no such correspondence was ever sent to or received by the Complainant. 

In response to a question raised by the Adjudication Officer the Complainant confirmed in evidence that that he did receive a payment at the end of his employment but that it included only his basic salary, one weeks’ statutory notice and 2 days annual leave instead of 7 days which meant that he was due a payment for 5 days annual leave.

The Respondent did not attend the scheduled hearing of this complaint.  Notice of the hearing arrangements was sent to the Respondent on the 28th October 2022. Having carefully reviewed the file I am satisfied that the Respondent was on notice of the claim against it. I waited a reasonable time before proceeding with the hearing in the absence of the Respondent. No explanation for the Respondent’s non-attendance has been received by the Workplace Relations Commission. 

CA-00049040-001 – Terms of Employment (Information) Act 1994

Relevant Law:

Terms of Employment:

The Terms of Employment (Information) Act 1994 as amended by the Employment (Miscellaneous) Provisions Act 2018 (hereinafter referred to as the “1994 Act”) sets out the basic terms of employment which an employer must provide to an employee in written form. The 1994 Act obligates an employer to provide employees with certain essential information in written form within five days of commencing employment. The 1994 Act also obligates an employer to provide employees with information concerning other aspects of an employee’s terms and conditions of employment in written form within two months of commencing employment:

“3. Written statement of terms of 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) […]

(b) […]

(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) […]

[(fa) a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order,]

[(g) […]],

(ga) that the employee may, under section 23 of the National Minimum Wage Act 2000, request from the employer a written statement of the employee's average hourly rate of pay for any pay reference period as provided in that section,]

(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.

[(1A) Without prejudice to subsection (1), an employer shall, not later than 5 days 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 2014);

(c) 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;

(d) the rate or method of calculation of the employee's remuneration and the pay reference period for the purposes of the National Minimum Wage Act 2000;

(e) the number of hours which the employer reasonably expects the employee to work—

(i) per normal working day, and

(ii) per normal working week. … ”

Redress:

Section 7 of the 1994 Act provides that compensation up to a maximum of 4 weeks’ remuneration may be awarded if a complaint is deemed well founded.

In Beechfield Private Homecare Limited v. Megan Hayes Kelly, TED1919, the Labour Court awarded the maximum of four weeks’ remuneration. Here the Chairman of the Court noted “[i]n determining the appropriate level of compensation it should award in a particular case, the decision-maker must take into account all the relevant circumstances of the case before it. In this case, the Court determines that the breaches were at the serious end of the spectrum …”.

Findings:

The Respondent did not attend the hearing. I have had regard to the written submissions presented by and on behalf of the Complainant and the Complainant’s oral evidence which was uncontested. I found the Complainant to be an honest and credible witness.

The Complainant was employed by the Respondent for over four months, from the 1st November 2021 until his employment ended on the 28th February 2022. The Complainant did not receive a statement of his core terms of employment in writing or a statement in writing of his terms of employment. Consequently, the Respondent breached Section 3 of the 1994 Act and the complaint is well founded.

As the Respondent failed to provide any statement in writing on the Complainant’s terms of employment, the breach was at the serious end of the spectrum. Pursuant to Section 7 of the 1994 Act, an award of four weeks’ remuneration is appropriate.

CA-00049040-002 – Organisation of Working Time Act 1997

Relevant Law:

Annual Leave Entitlement

Section 19 of the 1997 Act outlines that an employee’s annual leave entitlement is based on the amount of time that they have worked during the year as is calculated in three ways:

(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)

Times and Pay for Annual Leave

Section 20(1) of the 1997 Act deals with the times at which annual leave is granted to an employee and this is determined by the employer subject to a number of provisions:

(a)   The employer taking into account-

(i)               The need for the employee to reconcile work and any family responsibilities,

(ii)              The opportunities for rest and recreation available to the employee.

(b)   To the employer having consulted the employee or the trade union (if any) of which he or she is a member, not later than one month before the day on which the annual leave or, as the case may be, the portion thereof concerned is due to commence, and

(c)    To the leave being granted within the leave year to which it relates or, with the consent of the employee, within 6 months thereafter.

(2) The pay in respect of an employee’s annual leave shall –

(a) be paid to the employee in advance of his or her taking the leave,

(b) be at the normal weekly rate or, as the case may be, at a rate which is proportionate to the normal weekly rate, and ….”

Compensation on Cesser of Employment

Section 23 of the 1997 Act outlines the compensation to be given when an employee ceases to be employed:

23(1)(a) Where –

(i) an employee ceases to be employed, and

(ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee, the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave.

Redress:

Section 27(3) of the 1997 Act provides:

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 the circumstances, but not exceeding 2 years remuneration in respect of the employee's employment.

Findings:

The Respondent did not attend the hearing. I have had regard to the written submissions presented by and on behalf of the Complainant and the Complainant’s oral evidence which was uncontested. I found the Complainant to be an honest and credible witness.

The Complainant was employed by the Respondent for over four months, from the 1st November 2021 until his employment ended on the 28th February 2022. The Complainant stated that his salary was €36,000 per annum gross which equates to €692.31 per week gross.

The Complainant gave evidence that during the course of his employment he did not take any annual leave and that he was not paid his full annual leave entitlement when his employment ended on the 28th February 2022. The Complainant stated that he had accrued an entitlement of 7 days annual leave and that he was only paid 2 days annual leave.

Based on all the evidence I find that during the course of his employment with the Respondent the Complainant worked on average 40 hours per week and was not paid annual leave during that time. On the termination of his employment he was paid 2 days annual leave. 

I find that the Complainant’s outstanding annual leave during his 17 weeks employment with the Respondent, subject to “one-third of a working week for each month in the leave year in which he or she works at least 117 hours” is €692.31. I therefore find the Complaint to be well founded.

CA-00049040-001 – Terms of Employment (Information) Act 1994

I find that this complaint is well founded for the reasons set out above. In making a decision on what compensation to award in respect of this complaint I have had regard had to the Labour Court decision in the case of Beechfield Private Homecare Limited v. Megan Hayes Kelly, TED1919, where the Complainant claimed that her employer was in breach of the Terms of Employment (Information) Act 1994 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 failure to issue any statement of terms and conditions of employment within the required timeframes must be considered to be more serious than issuing an imperfect statement, 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’ remuneration, namely €2,769.23.

CA-00049040-002 – Organisation of Working Time Act 1997

I find that this complaint is well founded for the reasons set out above. In respect of the annual leave to which the Complainant was entitled on the termination of his employment I award the Complainant the sum of €692.31 as compensation in respect of the non-payment of annual leave on termination.

Terms of Employment (Information) Act 1994, terms and conditions of employment, contract of employment, non-payment, annual leave