Complainant

Respondent

Parties

Isabel  Caires Gazzola Andre

Worship Management Ltd Photogiftshop.Ie

Representatives

James Mc Evoy, Work Matters Ireland

 Did not attend.

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-00054703-001

26/01/2023

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

CA-00054703-002

26/01/2023

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

CA-00054703-003

26/01/2023

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

CA-00054703-004

26/01/2023

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

CA-00054703-005

26/01/2023

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

CA-00055236-001

22/02/2023

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

CA-00055236-002

22/02/2023

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

CA-00055236-003

22/02/2023

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

CA-00055236-004

22/02/2023

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

CA-00055236-005

22/02/2023

The Complainant was employed by the Respondent as a Sales Assistant. Employment commenced on February 28th, 2018, and terminated on October 21st, 2022, on foot of the employee’s resignation.

Two complaint forms were received from the Complainant, the first complaint form on 26th January 2023 and the second complaint form on 22nd February 2023. A level of duplication has taken place across the two complaint forms. In total there are five complaints and not ten complaints as shown above.

I am now declaring null and void the complaints received on the second complaint form (22nd February 2023), these are as follows:

1.       CA – 00055236 – 001 – submitted under s.7 Terms of Employment (Information) Act 1994

2.       CA – 00055236 – 002 - submitted under s.7 Terms of Employment (Information) Act 1994

3.       CA – 00055236 – 003 – submitted under s.6 Payment of Wages Act, 1991

4.       CA – 00055236 – 004 – submitted under s.27 Organisation of Working Time Act, 1997

5.       CA – 00055236 – 005 - submitted under s.6 Payment of Wages Act, 1991

The Respondent did not attend the scheduled hearing of the complaint.

BACKGROUND 

·       The Complainant was employed by the Respondent as a Sales Assistant. Employment commenced on February 28th, 2018 and terminated on October 21st 2022 on foot of the employee’s resignation.

·       The Complainant was paid forthrightly the sum of €1,195.50 (€596.25 weekly).

·       The Complainant was not issued with a statement of her Core Terms of Employment.

·       The Complainant was not issued with a Statement of her Main Terms of Employment.

·       During her period of employment, the Complainant often worked alone and was unable to avail of her break entitlements.

·       From her final wages the Respondent unlawfully deducted money from the Complainant.

CA-00054703-001: Terms & Conditions of Employment:

·       Complaint seeking adjudication by the Workplace Relations Commission under Section 7 of the Terms of Employment Information Act, 1994.

CA-00054703-002: Terms & Conditions of Employment:

·       Complaint seeking adjudication by the Workplace Relations Commission under Section 7 of the Terms of Employment Information Act, 1994.

·       The Complainant was not issued with a statement of her main Terms of Employment.

CA-00054703-003:

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

·        In the Complainant’s final payslip, the Respondent unlawfully deducted the amount of one week’s wage from the Complainants salary.

CA – 00054703 – 004:

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

·       During the entirety of her employment the Complainant maintains that due to a lack of cover, she often worked alone, and volume of business, she rarely got her legally entitled breaks. It is estimated that on average she did not receive her correct break allowance three days a week. She was employed for a period of 191 weeks. This calculates as 573 x 0.5- hour breaks at her half-hourly rate of €6.73 to be a total sum of €3,856.29. The Complainant is seeking redress in the form of monies owed and/or compensation for the breach by her employer of the relevant legislation

The Respondent did not attend the scheduled hearing of the complaint. I am satisfied that correspondence containing arrangements for the hearing on the 15th June were sent to the Respondent on 8th May 2023, these arrangements contained the date, time and venue for the hearing.

No contact was received from the Respondent in relation to non-attendance at the scheduled hearing of the complaint.

Correspondence was received from the Respondent some time after the hearing, any such information received has not been considered.

The Terms of Employment (Information) Act, 1994 at section 3 reads as follows:

3. (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)      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, 1963).

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)        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.

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)      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.

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 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 who

Section 7 of the same Act reads as follows:

7 (2) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of contravention of section 3, 4, 5 or 6 shall do one or more of the following, namely –

(d) order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.

CA-00054703-001: Terms & Conditions of Employment.

I am satisfied that the complainant was not issued with a statement of her particulars of employment as prescribed by the Act. The Respondent has breached section 3 of the Act and I now order the Respondent to pay compensation of four weeks’ pay i.e., €2,385.00 to the Complainant. Such payment should be made within 42 days from the date of this decision.

CA – 00054703 – 002: Terms & Conditions of Employment.

The Employment Misc. Provisions Act 2018 was signed by the President on 25th December 2018. This enactment came into effect on 4th March 2019 and made a small number of changes to employment rights legislation.

In relation to the Terms of Employment (Information) Act 1994 the changes saw the introduction of the “Day 5” statement. With effect from 4th March 2019 an employer must notify each new employee, in writing, within 5 days of commencement of employment, of some core terms of employment:

1.       the full names of the employer and the employee;

2.       the address of the employer;

3.       the expected duration of the contract, in the case of a temporary contract, or the end date if the contract is a fixed-term contract;

4.       the rate or method of calculation of the employee’s pay;

5.       the number of hours the employer reasonably expects the employee to work per normal working day and per normal working week.

In the instant case the Complainant commenced her employment before these changes were introduced and I must now conclude that this complaint is not well-founded.

CA-00054703-003:

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

In her final payslip the Respondent made a deduction of one weeks pay, €596.25 from the Complainant’s wages and informed her that she had taken too mush annual leave. The Complainant was left with a payment of € 156.76 for a two-week period. This left the complainant in considerable financial hardship.

There was no contractual agreement between the parties that any overpayment could be deducted from final payments. I now order the Respondent to re- pay the Complainant €596.25. Such payment should be made within 42days from the date of this decision.

CA – 00054703 – 004.

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

Section 27(4) of the Act reads as follows:

(4) A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

Section 27(6) of the Act reads as follows:

(6) A complaint shall be presented by giving notice thereof in writing to a rights commissioner and the notice shall contain such particulars and be in such form as may be specified from time to time by the Minister.

As per complaint form and submission the Complainant states the following:

During the entirety of her employment the Complainant maintains that due to a lack of cover, she often worked alone, and volume of business, she rarely got her legally entitled breaks. It is estimated that on average she did not receive her correct break allowance three days a week. She was employed for a period of 191 weeks. This calculates as 573 x 0.5- hour breaks at her half-hourly rate of €6.73 to be a total sum of €3,856.29. The Complainant is seeking redress in the form of monies owed and/or compensation for the breach by her employer of the relevant legislation

Pursuant to section 27(4) of the Act I cannot consider a period of 191 weeks, the maximum permitted is 26 weeks. Pursuant to section 27(6) the complaint is lacking in particulars and therefore I am unable to find this complaint well founded.

CA – 00054703 – 005.

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

This complaint is identical to CA – 00054703 – 004. It has been submitted under the Payment of Wages Act 1991.

It is impossible to calculate due to the lack of particulars. The sum being sought in the complaint is not properly payable to the Complainant. This complaint is therefore not well – founded.

CA-00054703-001: Terms & Conditions of Employment.

I am satisfied that the complainant was not issued with a statement of her particulars of employment as prescribed by the Act. The Respondent has breached section 3 of the Act and I now order the Respondent to pay compensation of four weeks’ pay i.e., €2,385.00 to the Complainant. Such payment should be made within 42 days from the date of this decision.

CA – 00054703 – 002: Terms & Conditions of Employment.

In the instant case the Complainant commenced her employment before these changes were introduced and I must now conclude that this complaint is not well-founded.

CA-00054703-003:

There was no contractual agreement between the parties that any overpayment could be deducted from final payments. I now order the Respondent to re- pay the Complainant €596.25. Such payment should be made within 42days from the date of this decision.

CA – 00054703 – 004.

Pursuant to section 27(4) of the Act I cannot consider a period of 191 weeks, the maximum permitted is 26 weeks. Pursuant to section 27(6) the complaint is lacking in particulars and therefore I am unable to find this complaint well founded.

CA – 00054703 – 005.

It is impossible to calculate due to the lack of particulars. The sum being sought in the complaint is not properly payable to the Complainant. This complaint is therefore not well – founded.