ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00000521
Complaint(s)/Dispute(s) for Resolution:
| 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-00000727-001 |
09/11/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 |
CA-00000727-002 |
09/11/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 |
CA-00000727-003 |
09/11/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 |
CA-00000727-004 |
09/11/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 |
CA-00000727-005 |
09/11/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 |
CA-00000727-006 |
09/11/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 |
CA-00000727-008 |
09/11/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 |
CA-00000727-009 |
09/11/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 |
CA-00000727-010 |
09/11/2015 |
Date of Adjudication Hearing: 07/04/2016
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
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 section 7 of the Terms of Employment (Information) Act, 1994 and under section 6 of the Payment of Wages Act, 1991, 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).
Complainant’s Submission and Presentation:
The complainant submitted the following complaints and expanded upon them at hearing:
I was working an average of 66 hours each week. |
I was never paid Sunday Premium |
Every week the employer kept €130 from my wages as "employment fee". This was during the entire period while I worked for him. |
The amount calculated comprises overtime, holiday not paid, notice and hours calculated at national minimum wage |
I was not paid for annual leave |
I was never paid for Bank Holidays |
We were never given breaks. We worked between 11 and 14 hours each day. |
We often worked 14 hours/day, and the program was from 15:00 until sometimes even 5:00 am. |
I was never given a contract. |
He stated that he started employment as a pizza chef on 31st January 2015. He stated that the hours he worked and the pay he received indicated that he was not paid the basic statutory minimum wage. He made a complaint to the Labour Inspectorate who received a reply from the employer to indicate that he was paid €8.65 per hour for a 37.5 hour week. This is disputed by the complainant. He gave evidence of his pattern of work hours as :
Monday, Tuesday, Wednesday, Thursday 3pm – 2-2.30am
Friday, Saturday and Sunday 3pm – 5.00am
He submitted that he worked more than 48 hours per week and rarely received breaks. He was paid €350 per week with no premium for working Sundays or night shifts. On several occasions he worked without the requisite 11 hours break between shifts.
The employer deducted €30 for taxes which Revenue Commissioners confirmed were not paid. A further €100 was deducted for accommodation. The complainant calculated that he is owed €14,745 for hours worked and not paid.
The complainant further submits that he did not receive a written contract of employment as provided for in the Terms of Employment (Information) Act 1994.
Respondent’s Submission and Presentation
The respondent did not attend the hearing.
Decision:
CA-00000727-001 – Organisation of Working Time Act 1997 – maximum weekly hours.
Section 15 governs the maximum permitted weekly working hours of employees. In this case, on the uncontested evidence of the complainant I find that the respondent acted in breach of the Act by requiring the complainant to work more than 48 hours per week. I declare this complaint to be well founded and I require the respondent to pay to the complainant the sum of €500 compensation.
CA-00000727-002 – Organisation of Working Time Act 1997 – compensation for Sunday Working.
Section 14 of the Act provides for compensation for employees who are required to work Sundays. Based on the uncontested evidence of the complainant I find that the requirement to work Sundays was not compensated in the case of the complainant and I find his complaint to be well founded and I require the respondent to pay to the complainant the sum of €500 compensation.
CA-00000727-003 – Payment of Wages Act 1991 – deductions of €130 per week.
The complainant’s uncontested evidence is that the respondent employer unlawfully deducted the sum of €130 per week from his wages, in connection with taxes (not paid), and an amount for accommodation costs. I find that the deductions made are in breach of Section 5 of the Act and I require the respondent to pay to the complainant the sum of €3,250.
CA-00000727-004 – Payment of Wages Act 1991 – wages paid less than amount due, holiday pay and minimum notice
The complainant’s evidence is that he worked up to 66 hours per week but was only paid €8.65 per hour for a 37.5 hour week. His uncontested evidence is that that wages properly payable as governed by Section 5 (6) of the Act constitutes an unlawful deduction in the amount of €14,745.
I have considered the evidence and have decided that the complainant’s complaint in this section is in part well founded. The wages properly payable I find is the amount of €6,271 and I require the respondent to pay to the complainant the sum of €6,271.
The claim for holiday pay is contained in decision under reference CA-00000727-005.
I established in the hearing that the complainant left his employment, and I find his claim for minimum notice payment is not well founded.
CA-00000727-005 – Organisation of Working Time Act 1997 – Annual leave
Section 23 of the Act governs compensation for annual leave accrued and not taken on cessation of employment. The calculation for such leave is provided as the normal weekly rate. I find the complainant’s complaint to be well founded and I require that the respondent pay to the complainant the sum of €700.
CA-00000727-006 – Organisation of Working Time Act 1997 – Public Holidays
Section 21 governs the employee’s entitlement to public holidays. On the uncontested evidence of the complainant I find that the provisions of section 21 were not applied to him and I find his complaint to be well founded. The monetary value is €108. I require the respondent to pay to the complainant the sum of €108.
CA-00000727-008 – Organisation of Working Time Act 1997 – breaks
Section 12 of the Act provides that an employer shall not require an employee to work more than 4 hours and thirty minutes without a break of at least 15 minutes and more than six hours without a break of 30 minutes, which break can include the first break referred to. On the uncontested evidence of the complainant, while I find that the respondent occasionally filled in for the complainant at busy times to allow him breaks, there were breaches of section 12 of the Act during the course of his employment and I find his complaint to be well founded. I require the respondent to pay to the complainant the sum of €500 compensation.
CA-00000727-009 – Organisation of Working Time Act 1997 - daily rest periods
Section 11 of the Act confers a right on the employee to a daily rest period of 11 consecutive hours in each 24 hours work period. On the uncontested evidence of the complainant, I find that on weekends this right was breached and I find his complaint to be well founded and I require the respondent to pay to the complainant the sum of €500 compensation.
CA-00000727-010 – Terms of Employment (Information) Act 1994.
Section 3 of the Act provides that written terms of conditions of employment shall be provided to employees by employers within two months of commencement of employment. Based on the uncontested evidence of the complainant that this section was not complied with, I find his complaint to be well founded. I require the respondent to pay to the complainant the sum of €700 compensation.
Dated: 7th July 2016