ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00001301
Complaint(s)/Dispute(s) 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 | CA-00001756-001 | 05/01/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00001756-002 | 05/01/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00001756-003 | 05/01/2016 |
Date of Adjudication Hearing: 03/05/2016
Workplace Relations Commission Adjudication Officer: Joe Donnelly
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 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:
I was short pay for 4.5 hours between the period of 19/12/2015 and 31/12/2015 when an hourly rate of €13 was agreed per hour before i started the job. I asked for these hours to be paid to me but with no response or explanation from my employer. I will send copies of payslips where I have documented hours not paid. |
I did not receive any holiday entitlements on receiving my p45. |
I was told by my employer that I was not entitled to my bank holiday according to her bookeeper. I told her that i had spoken to my mam about it who is also a bookeeper. She told me she would look into it and the next thing i know im receiving my p45. I feel like i was victimized by asking for what I was entitled to. |
Respondent’s Submission and Presentation:
The complainant was employed on a one month trial basis as a baker in a grocery store commencing on 1st December 2015. The position was for a 39 hour week. The complainant was late one morning in the first week and on several occasions left work early. She had to be instructed to take her breaks. The complainant on the 18th December reported that she had injured her arm but continued to work until the end of her shift. She was instructed to go to the doctor that day but instead of doing that she went the following morning (Saturday) and did not work that day.
Payments for Public Holidays are administered by the respondent’s book-keeper and should be paid correctly.
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.
Issues for Decision:
The complainant has lodged one complaint under The Payment of Wages Act 1991 to the effect that she was not paid for all hours worked.
The complainant has lodged two complaints under The Organisation of Working Time Act 1997. One complaint is in relation to the non-payment of holiday pay due to her when her employment terminated. The second complaint is that the complainant was not paid in respect of a Public Holiday (New Year’s Day).
Legislation involved and requirements of legislation:
Section 5(6) of the Payment of Wages Act 1991 states:
“Where-
the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act)…..
then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.”
The employer can only make deductions that are authorised by law or by a term of the employee’s contract or agreed in writing in advance by the employee.
Section 19(1) of the Organisation of Working Time Act states:
“Subject to the First Schedule….an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to-
4 working weeks in a leave year in which he or she works at least 1,365 hours (unless in a leave year in which he or she changes employment),
One-third of a working week for each month in the leave year in which he or she works at least 117 hours, or
8 per cent of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks)
The Act provides that the entitlement is to whichever of the applicable calculations is the greater.
Section 23(2) of the Act states:
Where-
an employee ceases to be employed during the week ending on the day before a public holiday, and
the employee has worked for his or her employer during the four weeks preceding that week,
the employee shall, as compensation for the loss of his or her entitlements under section 21 in respect of the said public holiday, be paid by his or her employer an amount equal to an additional day’s pay calculated at the appropriate daily rate.”
Decision:
Complaint CA-00001756-001:
The complainant commenced employment with the respondent on 1st December 2015 as a baker. Her rate of pay was €13.00 per hour. The employment terminated on 31st December 2015.
The complainant stated that she was not paid for all the hours that she had actually worked for the respondent. Over the period of her employment this amounted to 4.5 hours. The respondent stated that the complainant had been specifically employed to work a 39 hour week. The complainant had been late on an occasion and had left work early on other occasions. She had failed to attend a doctor when instructed to do so and as a result was absent for a whole day. The complainant produced details of all hours worked during her employment. The respondent in evidence said that there was no time and attendance record in relation to the complainant.
Based on the evidence presented I find this complaint to be well founded and order the respondent to pay the complainant the sum of €58.50 in compensation.
Complaint CA-00001756-002:
The complainant stated that she did not receive holiday pay. Based on her evidence that she worked 179.5 hours, I find this complaint well founded and order the respondent to pay the complainant the sum of €186.68 in compensation.
Complaint CA-00001756-003:
The complainant stated that her employment ended on 31st December 2015 but that she did not receive payment in respect of New Year’s Day. The respondent’s director said that such matters were left to their book-keeper. On the evidence presented I find this complaint to be well founded and order the respondent to pay the complainant the sum of €104.00 in compensation.
Dated: 13th July 2016