ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Decision Reference: ADJ-00000248
Complaints/Disputes for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 |
CA-00000342-001 |
20/10/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 |
CA-00000342-002 |
20/10/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 |
CA-00000343-003 |
20/10/2015 |
Date of Adjudication Hearing: 22/03/2016
Workplace Relations Commission Adjudication Officer: John Walsh
Venue: Ardboyne Hotel, Navan, Co.Meath.
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and under section 27 of the Organisation of Working Time Act 1997 and under section 7 of the Terms of Employment (Information) Act 1994 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
The Complainant was employed from the 26th of August 2008 to the 15th of July 2015. She worked as a bar supervisor. She alleges that she was not paid outstanding holiday pay or public holiday entitlements from August 2008 to July 2015 contrary to section 19.1 and 21.1 of the Organisation of Working Time Act 1997. She also alleges that the Respondent failed to provide her with a written statement outlining her written terms and conditions of employment contrary to section 3.1. of the Terms of Employment (Information) Act 1994. The Complainant stated that she was paid her wages partly through payroll and partly in cash. The cash payment was €240 per week and the amount paid through payroll varied from week to week up to €240. She filed a complaint with the Workplace Relations Commission on the 20th of October 2015.
Complainant’s Submission:
The following is a summary of the submission presented by the Complainant’s representative on the day of the hearing and a supplementary written submission received in April 2016.
The Complainant advised the Respondent on the 25th of September 2015 that she was due outstanding wages in relation to annual leave and public holiday entitlements. She outlined the following periods of outstanding pay;
- From the 24th of August to the 5th of December 2012
She was a full-time employee working approximately 35 hours per week at €12/hour.
(€420/week x 4 weeks = €1680 x 4 years and 3 months = €7140 holiday entitlement.)
Her public holiday entitlement for this period amounts to €3234
Her weekly wage was €420 divided by 5 = (€84 daily rate x 9 public holidays = €756 x 4 years = €3024 plus 3 months average 2 and ½ day = €210 = €3234)
She was on maternity leave from December 2012 to June 2013 and was still entitled to her public holidays.
- From June 2013 to March 2015
Her average weekly pay for this period was €326.50
(10 hours x €8.65 = €86.50 and 20 hours at €12/hour cash in hand = €240 giving a total of €326.50.)
Her holiday pay entitlement was €326.50 x 4 weeks= €1306 plus 9 months at €326.50 x 3 weeks = €979.50 giving a total of €2285.50.
Her public holiday entitlements for this period amounts to 9 public holidays x €65.30 = €587.70 plus 9 months (7 days) = €457.10 giving a total of €1044.80.
- From March 2015 to July 2015
She worked approximately 40 hours a week for this period.
(40 x €12/hour = €480. 14 days x €96 = €1344)
For this period she had an entitlement to 4 public holidays in the sum of €384 (4 days x €96 = €384).
The Complainant stated that the outstanding amount due to her in wages for annual leave and public holidays is €15,922.
She also stated that she did not receive a written statement outlining her terms and conditions of employment when she commenced in 2008. She accepts that she did receive a written contract in May 2011.
Supplementary Submission received in April 2016:
The Complainant was paid her wages from payroll and also in cash. She was paid €12/hour in cash for 20 hours per week and the balance was paid through payroll. The Respondent has not denied that this is the way the Complainant was paid. The Respondent intended to convey the impression at the hearing that the Complainant was only working part-time when this was not the case. It is the case that the Complainant was receiving cash payments of €240 per week for a total of 27 weeks in addition to cheque payments from the 3rd of August 2014 to the 1st of February 2015 giving a total of €9998.53. The figure earned between the 15th of February 2015 to the 26th of July 2015 is €8016.01 giving a total of €17, 414.54. This gives an average weekly wage of €334.31 for the year. The Complainant was entitled to 4 weeks holiday pay at €309.23 giving a total of €1337.22. The Complainant received holiday pay in the sum of €890.11 leaving a balance payment due of €447.11.
In relation to public holiday pay the Complainant was working an 8 hour day at €12/hour – an average of €96 per day. She has an entitlement to €864 (9 x €96= €864).
The total amount due in annual leave and public holiday entitlements is €1311.11 for the period the 3rd of August 2014 to the 26th of July 2015.
The Respondent failed to provide a written statement to the Complainant outlining her Terms and Conditions of Employment in 2008. At the hearing a ‘Contract’ dated the 1st of October 2008 was produced by the Respondent which the Complainant stated was never received. She believes that the introduction of the document was unhelpful and had no basis in fact or truth. The Complainant did receive a written contract in May 2011.
Request by the Complainant for an extension of the time limit:
At the hearing held on the 22nd of March 2016, the adjudication officer pointed out to the parties that there is a 6 month time limit under the 1997 act from the date of the termination of employment for initiating a complaint. He pointed out that the complaints filed by the Complainant for the period covering the years 2008 through to 2013 are outside the time limits and cannot be adjudicated on.
The Complainant’s representative requested an extension of the time limit for 12 months on the basis of reasonable cause. He stated that the complainant commenced work for the Respondent in 2008. She outlined in her submission that she had not been paid her full entitlements for the last year of her working. It is reasonable to assume that she did not receive the full amount of her wages for the period that she cannot now claim for (2008-2013). This was as a result of a deliberate policy of the Respondent. The records provided by the Respondent indicate that the Complainant was a part-time employee. She was partly paid in cash by the Respondent. He was evading his responsibility in terms of holiday pay and other entitlements which are not within the remit of the adjudicator. The Complainant has no say in how she was paid. She was subject to what the Respondent told her and that was the status quo. It would be unjust that he could limit her claim as a result of his improper policies. She was not made aware of her rights until her new employer told her of them and she lost no time in seeking payment from the Respondent in 2015 without success. She submitted her complaint to the Workplace Relations commission in October 2015 without delay. She should be allowed an extension on the time limit in line with the legislation.
Respondent’s Submission:
The Complainant filed a complaint under the Organisation of Working Time Act 1997 alleging that she did not receive her full annual leave or public holiday entitlements from the period 24th of August 2008 to 15th of July 2015. She also alleges that she did not receive a written statement outlining her terms and conditions of employment in 2008.
The Respondent denies the allegations made by the Complainant. At the hearing on the 22nd of March 2016 the adjudicator pointed out to the parties that the Complainant was time barred from claims that she made from 2008-2013 and on this basis the Respondent was required to submit company records relating to the Complainant’s working hours for the years 2014 and 2015. These records were submitted to the adjudicator on the 4th of April 2016. The records show –
Hours Worked Gross Pay Holiday Pay
2014 147.50 €1275.30 -
2015 754 €8726.41 €890.11
The Complainant worked for the Respondent from August 2013 to February 2015 as a part-time employee working approximately 6 and ½ hours per week per €8.65/hour.
She decided that she would like to work more hours and she was given a pay increase to €12/hour. All hours worked were flexible and this was of benefit to both the staff and the Respondent. For this reason all staff were paid 8 % of hours worked as holiday pay on top of that they receive a days holiday pay (their average) for public holidays. This is added to annual leave allowance and can be taken any time. As the Complainant was part-time from August 2013t to February 2015 she did not qualify for public holiday pay as she did not work 40 hours in any of the 5 weeks before a public holiday. As soon as she started working longer hours she was given the relevant hours holiday pay for public holidays.
The Complainant also stated that she did not receive a written statement outlining her terms and conditions of employment when she joined the organisation in 2008. A written statement was submitted at the hearing in relation to the 2008 contract. This statement was damaged when the premises was flooded in April 2014 and the Complainant’s signature was no longer visible. Considerable damage was also done to other files and documents on the premises. The complainant did receive the document in question and the Respondent is happy that they did not breach the Terms of Employment (Information) act 1994.
Findings:
- th of May 2010. This contract relates to a period from the 30th of May 2011.
The contract provides
Section (V) – Hours of Work
Staff are required to clock in and clock out for each shift they are rostered on. The hours of work vary between 36 hours and 45 hours per week , as shall be set out by the company from time to time but in any event shall at all times be in compliance with the provisions of the Organisation of Working Time act 1997.
Section (VI) – Salary
The employees annual salary shall be €25,000/annum. Salary shall be reviewed annually and payments shall be made by company cheque.
Section (VII) – Annual Leave
In addition to the 9 public holidays 20 working days holiday is allowed during a full calendar year, 1st of January to 31st of December in accordance with the provisions of Organisation of Working Time act 1997.
The sections outlined above clearly indicate the hours of work, salary and holiday arrangements that the Complainant is entitled to. It appears from the evidence submitted by the parties that changes were made to this contract in relation to these provisions without consultation with the Complainant.
- th of October 2015. The time limit for initiating complaints under the Organisation of Working Time act 1997 is 6 months from the date of termination of employment. An extension of 6 months is allowable on the basis of reasonable cause. The Complainant’s employment terminated on the 15th of July therefore the 6 month time limit runs from the 19th of April 2015 to the 15th of July 2015. An extension of 6 months would allow the time limit to run from the 19th of October 2014 to the 15th of July 2015 a period of 39 weeks. I have decided to allow an extension of the time limit based on the application made by the Complainant’s representative and on the fact that the Complainant’s contract of employment was changed without consultation.
Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act and under section 27 of the Organisation of Working Time Act 1997 and under section 7 of the Terms of Employment (Information) act 1994.
Organisation of Working Time Act, 1997- Annual Leave Entitlement
Ref no: CA-00000342-001
In relation to the complaint taken under section 19.1 of the Organisation of Working Time Act, 1997 I find that the complaint is well founded. It is clear that the Respondent decided to pay the complainant partly in cash and partly through the pay-roll. This is quite an unorthodox practice and did not form part of her contract of employment. The hours submitted by the Respondent are payroll hours and do not reflect the hours paid in cash. Based on the evidence presented by the parties and on the balance of probability I find that the complaint is well founded. I order the Respondent to pay to the Complainant compensation in the sum of €447.11 for breaches of section 19.1 of the Organisation of Working Time Act 1997. The Complainant received the sum of €890.11 in holiday pay already from the Respondent leaving a balance due of €447.11.
Organisation of Working Time Act, 1997- Public Holiday Entitlement
Ref no: CA- 00000342-002
In relation to the complaint taken under section 21.1 of the Organisation of Working Time Act 1997 I find that the complaint is well founded. I accept that Complainant is entitled to 8 public holidays over the reference period from the 19th of October 2015 to the 15th of July 2015 in the sum of €768 (€96 x 8).
I note in the Labour Court recommendation DWT0940 provides
“under the principles laid down by the ECJ in the case of Van Colson Kamann v Land Nordrhein-Westfalen [1984] ECR 1891 where an individual’s right in infringed, the judicial redress provided shall not only compensate for the Claimant’s economic loss but must provide a real deterrent against future infractions”
I order the Respondent to pay to the Complainant the following compensation;
€447.11 for breaches of 19.1 of the 1997 Act.
€768 for breaches of section 21.1 of the 1997 Act.
€500 as a deterrent against future infractions.
The total sum of €1715.11 in compensation due to the Complainant must be paid within 6 weeks of the date of this decision.
Terms of Employment (Information) Act 1994 – Breaches of Section 3.1 of the Act.
In relation to the complaint filed under the Terms of Employment (Information) Act 1994 I accept from the evidence submitted by the Respondent that their premises was badly flooded in 2014 and as a result files and records were water damaged. I accept that the contract relating to the Complainant’s employment form August 2008 was water damaged and as a result the Complainant’s signature was no longer visible. I note that it is the practise in the organisation to issue contracts to their employees and I also note that the Complainant did receive a further contract on the 30th of May 2011. Based on the evidence presented by both parties at the hearing, I find that this complaint is not well founded and therefore fails.
Dated: 7th July 2016