Complainant

Respondent

Parties

Maria  Popovici

Ailesbury Services

Representatives

Marius Marosan

 Flynn O'Driscoll LLP

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-00056814-001

23/05/2023

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

CA-00056814-002

23/05/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00056814-003

23/05/2023

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

CA-00056814-004

23/05/2023

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

CA-00056814-005

23/05/2023

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

CA-00056814-006

23/05/2023

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

CA-00056814-008

23/05/2023

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

CA-00056814-009

23/05/2023

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

CA-00056814-010

23/05/2023

The Complainant is a cleaner working for the Respondent cleaning company on a variety of client sites.

On the 23rd of May 2023 she submitted a variety of statutory complaints regarding her employment with the Respondent.

The Complainant’s representative made detailed written submissions. The Complainant gave evidence under affirmation with the assistance of a translator.

The Respondent’s representative made detailed written submissions. Veronica Tiolan and Peter Brynes gave evidence under affirmation. 

The Terms of Employment (Information) Act, 1994 CA-00056814-001 and CA-00056814-002

The Respondent provided evidence that they had provided the Complainant with a written particulars of employment by way of a contract and handbook. The Complainant had signed the contract. The Complainant provided evidence that she was not sure what she received from the employer.

The Respondent accepts there was a minor breach of the legislation in that the pay period was not specified in these documents. They point out that the breach is entirely technical, and that the Complainant suffered no loss. They refer to the decision of the Labour Court in Component Distributors and Burns TED1812.

I tend to agree with the Respondent. While there is a breach of the legislation it is minor. Compensation of €250 is warranted in the circumstances.

The Organisation of Working Time Act, 1997 CA-00056814-004, CA-00056814-005

The Complainant alleges that she did not receive daily rest periods and worked above an average of 48 hours a week. The Respondent produced detailed working time records demonstrating compliance with both provisions of the act.

The Complainant challenged these records but failed to properly identified an alleged breach within the cognisable period.

Aside from the Complainant failing to particularise her complaints her representative communicated with her a number of times in Romanian while she gave evidence. This was despite warnings. As a result of this I am unwilling to rely on her oral evidence.

I also note that in her evidence regarding CA-00056814-001 and CA-00056814-002 she was unclear whether she actually alleged a breach of this legislation occurred. This is despite her filing complaints with the WRC alleging her rights under those acts had been violated. This did impact on the credibility of her evidence more generally.

The Complainant’s representative made supplemental submissions on the basis of her payslips. As the Respondent pointed out in their replying submissions, these submissions presented additional hours paid for Sunday premium or holidays as working hours.

The Payment of Wages Act, 1991 CA-00056814-006

This complaint relates to a deduction which occurred over 9 months before the Complainant submitted their complaint.

The Complainant provided no reasonable cause for her delay in submitting complaints and as the claim is out of time.

The Organisation of Working Time Act, 1997 CA-00056814-008

The Respondent’s position is that the Complainant was only entitled to be paid annual leave based on a 30-hour week as these were her contracted hours. Anything above this was overtime and as per SI 475 of 1997 was not reckonable for annual leave entitlements.

Both parties agree that the Complainant and her colleagues were assigned extra disinfecting duties which appear to have been related to covid-19. These hours were rostered up until the end of 2022 when they fell away due to lack of client demand.

It is common case that these hours were not considered when calculating annual leave.

On review of the Respondent’s work records it is clear that the Complainant does not work a 30 hour week. She consistently and continuously works above 30 hours. While some of her hours might be said to be exceptional and unforeseeable it is clear that she was being regularly rostered above 30 hours.

As outlined in a number of ECJ decisions and recently affirmed by the Labour Court in Carlow Co Council and Eamonn Ryan DWT2312 this should be recognised in her annual leave.

Section 27 of the Organisation of Working Time Act provides that I can require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.

Under calculation of annual leave for a low pay worker is a serious matter and I believe that it warrants compensation above that of the cost of the breach. I am also mindful that this matter concerns rights derived from an EU directive and the WRC’s obligation under Von Colson v Land Nordrhein-Westfalen to make an award that is proportionate and dissuasive.

In the circumstances I am of the view that compensation of €4000 is warranted.

The Organisation of Working Time Act, 1997 CA-00056814-009

This complaint was withdrawn in writing by the Complainant’s representative ahead of the hearing.

Payment of Wages Act, 1991 CA-00056814-010

This complaint relates to the failure of the Respondent to pay all overtime owed to the Complainant under the Cleaning Employment Regulation Order. The Respondent appears to have identified the overtime entitlement as being triggered after 46 hours work rather than 45.

The Respondent identified €855.34 owing to the Complainant and confirmed that this was paid before this decision was issued. As such the breach has been rectified under the payment of wages act.

Section 45A of the Industrial Relations Act, 1946 CA-00056814-003

This complaint also relates to the above breach of an ERO.  The complaint is clearly well founded.

Section 45A gives me jurisdiction not just to direct compliance with an ERO but also to award compensation that is just and equitable up to two year’s salary.

The Respondent has accepted the breach of the ERO and paid the Complainant the monies owing to them. The breach appears to have been a genuine accident. However, the Complainant is a low wage worker and any unlawful reduction in their renumeration, even slight, can have an disproportionately serious impact on their life.

In the circumstances an award of €1000 is appropriate.

CA-00056814-001

I find that the complaint is well founded and direct the Respondent to pay the Complainant €250 in compensation.

CA-00056814-002

I find that the complaint is well founded. I do not believe it is appropriate to provide double compensation for the overlapping breaches under CA-00056814-001 and make no award.

CA-00056814-003

I find that the complaint is well founded and direct the Respondent to pay the Complainant €1000 in compensation.

CA-00056814-004

I find that the complaint is not well founded.

CA-00056814-005

I find that the complaint is not well founded.

CA-00056814-006

I find that the complaint is out of time and that I do not have jurisdiction to consider it.

CA-00056814-008

I find that the complaint is well founded and direct the Respondent to pay the Complainant €4000 in compensation.

CA-00056814-009

This complaint was withdrawn and I do not have jurisdiction to consider it.

CA-00056814-010

This complaint was well founded but I direct no payment is made.