ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00001093
Complaints for Resolution:
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 Complainant seeking adjudication under Section 27 of the Organisation of Working Time Act, 1977 – 2015 Complainant seeking adjudication under Section 14 of the Protection of Employees (Fixed-Terms Work ) Act, 2003 Complainant seeking adjudication under Section 7 of the Terms of Employment (Information) Act, 1994 - 2015 |
CA-00001789-001
|
24/12/2015 |
Date of Adjudication Hearing: 09/05/2016
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and 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 has been employed by the Unemployed Centre on a Community Employment Scheme since February 2007. The Complainant referred a complaint to the Workplace Relations Commission on 24th December 2015 alleging the named Respondents had breached Section 6 of the Payment of Wages Act, 1991 – 2015, had breached Section 3 of the Terms of Employment (Information) Act, 1994 – 2015, had breached Sections 17 and 21 of the Organisation of Working Time Act, 1997 – 2015 and had breached Sections 9 of the Protection of Employees (Fixed-Term Work) Act, 2003 – 2015.
Summary of Complainants Position.
Terms of Employment (Information) Act, 1994 = 2015
The employee has not received the document that complies with Section 3. The following sections of the Act have not been complied with – Section 3 (1) (a) Name of Employer (b) Address of Employer (g) and (ga) reference to National Minimum Wage Act (i) notice and Section (1) (4) not signed and dated by the Employer.
Payment of Wages Act, 1991 – 2015
The employee’s wages were subject to an illegal deduction from €542.84 to €501.08 approximately from 8th May 2015 which is an ongoing loss. The employee seeks compensation. These are illegal deductions.
Organisation of Working Time Act, 1997 – 2015.
The employee’s rate of pay was reduced therefore she did not receive the correct public holiday payment for June, August and October 2015 Public Holidays.
Protection of Employees (Fixed-Term Work) Act, 2003 – 2015.
The Complainant’s Legal Representative made the following written submission to the Hearing “The employee has been employed since February 2007 and is still there. The employee has been on Fixed Term Contracts. The employee has sought to get a Fixed Term Contract (I believe this should read a Contract of Indefinite Duration) and has not been given objective reasons for not receiving Fixed Term Contract. (sic) The employee was never informed of opportunities or training for a permanent position. The employee has been employed since 2007 on one year fixed-term contracts. The employee says in those circumstances she is entitled to a Contract of Indefinite Duration.
The Legal Representative of the Complainant stated at the Hearing that the Legislation did apply to a worker employed under a Community Employment Scheme but did not adduce any evidence to support this contention.
Summary of Respondent’s Positon.
Terms of Employment (Information) Act, 1994 - 2015
The Respondent stated that the Contract of Employment required to be amended to comply fully with Section 3 of the Act. The Respondent referenced the Labour Court Decision in Irish Water v Patrick Hall in support of their argument that where the Complainant did not suffer any monetary loss or any other form of material detriment that the result was a technical breach of the Act.
Payment of Wages Act, 1991 – 2015.
The Respondent raised a preliminary issue in relation to the Complaint being statute barred and referenced the High Court Decision in HSE V John McDermott (2014) IEHC 331. The Complainant’s complaint states as follows: “my wages were subject to an unlawful deduction from 542.94 to 459.32 from 1.5.2015. The Complaint was lodged with the Workplace Relations Commission on 24th December 2015, therefore the complaint is statute barred by reference to Section 6 (4) of the Act.
The Complainant had been employed on a Contract of Employment to work 39 hours a week. The Complainant worked 36 hours a week and her wages were accordingly reduced to €501.08 for 36 hours of work. Furthermore Section 5 (5) of the Payment of Wages Act, 1991 – 2015 applies to an overpayment of wages not to a deduction of wages. The Complainant was claiming for payment of 39 hours while working 36 hours.
Organisation of Working Time Act, 1997 – 2015.
The Public Holiday of June 2015 is statute barred as it is outside the statutory time limit of 6 months. The Complainant was paid her correct wages in relation to the August and October Public Holidays as her wages had been reduced to reflect the situation where she was being paid for actual hours worked of 36 hours not her contracted hours of 39 hours a week.
Protection of Employees (Fixed-Term Work) Act, 2003 -2015
The Respondent argued that the Complainant was not covered by the Act by virtue of Section 2 (1) of the Act
Decision:
Section 41(4) 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.
Terms of Employment (Information) Act, 1994 – 2015.
On the basis of the evidence presented I declare the complaint is well founded. The Respondent has breached Section 3 and Section 4 of the Act. However I note the Decision of the Labour Court in Irish Water and Patrick Hall TED 161 is relevant to this complaint. There was no evidence presented at the Hearing that the Complainant suffered any detriment as a result of these technical breaches of the Act.
I order the Respondent to issue the Complainant with a Written Statement of her Terms and Conditions of Employment that complies with Section 3and Section 4 of the Act within 42 days of the date of this Decision
Payment of Wages Act, 1991 – 2015
Notwithstanding the preliminary issue raised by the Respondent in relation to the Time Limits issue and the Decision of the High Court in HSE V McDermott it is clear from the evidence from both Parties that the Complaint had a Contract of Employment to work 39 hours a week but as confirmed by both Parties the Complaint in fact only worked 36 hours.
Section 5 (5) (a) of the Act provides as follows: “Nothing in this section applies to – (a) a deduction made by an employer from the wages of an employee,…….where- (i) the purpose of the deduction….is the reimbursement of the employer in respect of – (1) any overpayment of wages”
The deduction made from the Complainant’s wages reflects wages for her actual hours worked as distinct from her contracted hours.
I do not therefore have to consider the Time limits issue in relation to this complaint
I declare the complaint is not well founded as there was no unlawful deduction from the wages of the Complainant.
Organisation of Working Time Act, 1997 – 2015.
This complaint relates to the payment received by the Complainant in respect of three Public Holidays claimed June, August and October 2015.
Preliminary Issue: This complaint was lodged with the Workplace Relations Commission on 24th December 2015. Therefore in accordance with Section 27 (4) of the Act the period covered by this complaint is from 25th June 2015. The complaint in relation to the June Public Holidays is statute barred and there was no application made for an extension of time
The Complainant works 36 hours a week and is paid wages for working these hours. There was no evidence presented to me at the Hearing or by way of submission that the complainant was paid her incorrect wages for both Public Holidays. This complaint relates to the complaint under the Payment of Wages Act, 1991 – 2015 which I have found not to be well founded.
Protection of Employees (Fixed-Term Work Act,) 2003 – 2015.
Section 2 (1) of the Act defines a Fixed-Term Employee for the purposes of the Act as follows:
“fixed-term employee means a person having a contract of employment entered into directly with an employer where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event but does not include =-
(a) Employees in initial vocational training relationships or apprenticeship schemes, or
(b) Employees with a contract of employment which has been concluded within the framework of a specific public or publicly-supported training integration or vocational retraining programme.
Decision. I declare I do not have jurisdiction to hear this complaint as the Complainant is not a Fixed-term employee as defined by the Act. The Complainant is employed on a Community Employment Scheme which is a publicly funded scheme to “enhance the employability and mobility of disadvantaged and unemployed persons by providing work experience and training opportunities for them within their communities”
Rosaleen Glackin
Adjudication Officer
Date:_____3rd August 2016