ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00048564

Parties:

Complaints:

Date of Adjudication Hearing:  15/02/2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints  to me by the Director General, I inquired into the complaints  and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The Complainant contends that he did not receive written terms of employment and that wages properly payable to him were unlawfully deducted during his period of employment.  He further contends that payment for annual leave accrued was not made to him on cessation of his employment.  He contends that he suffered penalisation by the Respondent for complaining about a health & safety matter in relation to the production and processing of cakes.

Summary of Complainant’s Case:

The Complainant is a Baker who was employed by the Respondent from 8th August 2023 to 13th October 2023.   He gave sworn evidence.

CA-00059583-001 Terms of Employment (Information) Act 1994.

He stated that he did not receive a written contract of employment from the Respondent.

CA-00059583-003 Safety, Health & Welfare at Work Act 2005

He stated that approximately 4 weeks before his employment ended, he was making cakes which were stored in the fridge.  After 9 days they were put in the freezer.  Then after another 7 days they were returned to the fridge as there was no space in the freezer.  He considered they were gone off at that stage and said to the Respondent they should be binned.  He was told not to worry and he said that as he had 30 years’ experience as a Baker he was not going to stand over such a situation.  He took off his apron and left.  He emailed the Food Safety Authority Ireland (FSAI) and there was correspondence back and forth with one of their Inspectors.  He did not know what the outcome was and he forwarded some of the correspondence post hearing.   

CA-00059583-004 Payment of Wages Act 1991

The Complainant said he was paid €14 per hour as an experienced baker.  He stated that the system of payment to him was “complicated”.  He received €368 per week by bank transfer and €192 in cash less €60 which he said might have been for tax. This was for a 40-hour week.   He worked 40 hours for the full week prior to the ending of his employment and he only received €368.  As he should have been paid €14 per hour, this represented a shortfall of €192.

CA-00059583-005 Payment of Wages Act 1991

He stated that he worked 22 hours in the week his employment ended and received €270, leaving a shortfall of €38.

CA-00059583-006 Organisation of Working Time Act 1997

He stated that he worked 382 hours in the period of his employment and should have received the value of 8% of hours worked for annual leave pay at the end of his employment.  The value of this is €427.84.  

Summary of Respondent’s Case:

The Respondents gave sworn evidence.

CA-00059583-001 Terms of Employment (Information) Act 1994.

The Respondent Mrs H stated that there is a staff of 5 employees, and each was given a written contract in or around the end of September 2023.  The Complainant was given a written contract.  A copy of the contract was provided to the WRC post hearing.

CA-00059583-003 Safety, Health & Welfare at Work Act 2005

The Respondent Mrs H gave sworn evidence about the substantive issue of the handling of the product.  She stated that she is fully trained and qualified in Food Safety.  She outlined the process which was the cause of the dispute with the Complainant.  She acknowledged that he was an experienced baker.  However, the Complainant would not take instructions, was very aggressive, used foul language, constantly complained about the noise of the machine used in the process and walked out of the job after an altercation.  In fact although he walked off the job, it proved difficult to get him off the premises.  They reported him to the Gardai for threatening behaviour.

CA-00059583-004 Payment of Wages Act 1991

The Respondent produced payslips post hearing that showed his hours worked and wages paid.             The Respondents have a payroll person who administers the payments.

CA-00059583-005 Payment of Wages Act 1991

The Respondents produced a payslip dated 18/10/2023 which shows payment for 23.5 hours for that week.

CA-00059583-006 Organisation of Working Time Act 1997

The Respondents produced a payslip dated 25/10/2023 which shows payment for annual leave for 24.92 hours which was the payment for annual leave due at the end of his employment.

Findings and Conclusions:

CA-00059583-001 Terms of Employment (Information) Act 1994.

Section 3 of the Terms of Employment (Information) Act 1994 (as amended) provides that an employer shall, not later than 1 month 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 particulars of employment.   The relevant section is:

3. (1)  An employer shall, not later than one month 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 (A) of the revised Act states:

A statement furnished by an employer under section 3, 4, 5, 6, 6E or 6F shall be —

(a) signed and dated by or on behalf of the employer,

(b) in writing, and

(c) transmitted on paper or, provided that the information is accessible to the employee, that it can be stored and printed, and that the employer retains proof of transmission or receipt, in electronic form.

In this instant case, I note the conflict of evidence.   No clear evidence was given by the Respondent in relation to the practical handing over or actual provision of the contract to the Complainant.  I note the provision of the written contract provided by the Respondent post hearing. However, in this case, the Complainant has strongly disputed that he was offered or given a written contract.  I find, on the balance of probabilities, that the Respondent has not actually provided him with the written contract in the time he was in the employment.  I find his complaint to be well founded and I require the Respondent to pay to the Complainant the sum of €200 compensation for breach of the Act.

CA-00059583-003 Safety, Health & Welfare at Work Act 2005

The evidence here is that there was an altercation between the parties in relation to the handling of product.  At the end of the row, according to the Complainant’s own evidence at the hearing he “took off his apron and left”.

Section 27 of the Act deals with penalisation.  The relevant sections and subsections are as follows:

• (1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

(2) Without prejudice to the generality of subsection (1), penalisation includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) imposition of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation.

To succeed in his case, the Complainant must have committed a ‘protected act’ as contained in Section 27 (3) and suffered a detriment (as defined in Section 27 (2) of the Act) because of it.             In this instant case, there was a dispute between the Complainant and the Respondent about the handling of product.  The Complainant considered that the matter was relevant to public food safety and made a complaint to the Food Safety Authority (FSAI).  He did not make a complaint to the Health & Safety Authority as in Section 27 (3) (c) of the Act.  He referred the matter to the FSAI.  He walked out of the job, having had a disagreement with the Respondent so therefore does not comply with the definitions of penalization as defined in Section 27 (2) of the Act.  I find the complaint to be not well founded.

CA-00059583-004 Payment of Wages Act 1991

I note the Complainant’s evidence that he was offered and was paid a rate of €14 per hour up until the time of the altercation and ending of his employment.   I note the payslips provided by the Respondent post hearing and I accept the Complainant’s evidence that the information on the payslips does not equate with the practical reality of his working week.   I find that in the week before the ending of his employment, he was not paid the sum of €192 which was the wages due for that full week.   I find his complaint to be well founded and I require the Respondent to pay to the Complainant the sum of €192.

CA-00059583-005 Payment of Wages Act 1991

I accept the Complainant’s evidence that his rate of pay was €14 per hour and that he worked for hours for which he was not fully remunerated.  I find his complaint to be well founded and I require the Respondent to pay to the Complainant the sum of €38.

CA-00059583-006 Organisation of Working Time Act 1997

Section 23 of the Act provides for compensation for annual leave accrued on cessation of employment provides:

I accept the Respondent’s evidence that the Complainant was paid for annual leave in his last payment.  However, in relation to the rate for which he was paid, as found, he was paid €14 per hour.  Based on the fact that calculation for annual leave is made on the basis of the normal working week, a shortfall of €62 occurred in calculation.  I find the complaint is well founded and I require the Respondent to pay to the Complainant the sum of €62.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00059583-001 Terms of Employment (Information) Act 1994

I have decided that the complaint is well founded and I require the Respondent to pay to the Complainant the sum of €200 compensation for breach of the Act.

CA-00059583-003 Safety, Health & Welfare at Work Act 2005

I have decided that the complaint is not well founded.

CA-00059583-004 Payment of Wages Act 1991

I have decided that the complaint is well founded and I require the Respondent to pay to the Complainant the sum of €192.

CA-00059583-005 Payment of Wages Act 1991

I have decided that the complaint is well founded and I require the Respondent to pay to the Complainant the sum of €38.

CA-00059583-006 Organisation of Working Time Act 1997

I have decided that the complaint is well founded and I require the Respondent to pay to the Complainant the sum of €62.

Dated:   11/04/2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Key Words: