ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00001679
CORRECTING ORDER ISSUED PURSUANT TO SECTION 39 OF THE ORGANISATION OF WORKING TIME ACT,1997
The order corrects the original decision issued on 29th July 2016 and should be read in conjunction with that decision
Complaints for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000 | CA-00002187-001 | 26/01/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00002187-002 | 26/01/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00002187-004 | 26/01/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00002187-005 | 26/01/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00002187-006 | 26/01/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00002187-007 | 26/01/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00002187-008 | 26/01/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00002187-009 | 26/01/2016 |
Venue: WRC Tom Johnson House, Haddington Rd, Dublin 4.
Date of Adjudication Hearing: 12/05/2016
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015, under section 7 of the Terms of Employment (Information) Act, 1994, under section 27 of the Organisation of Working Time Act, 1997, under section 24 of the National Minimum Wage Act, 2000 and Section 8(1B) of the Unfair Dismissals Act, 1977, following the referral of the complaints/disputes 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 was employed as Circus Rigger from 15th June 2013 to 27th October 2015. He was paid €220 into his hand each week and very basic accommodation. He worked an average of 63 hours per week minimum. She has made a number of complaints.
Complainant’s Submission and Presentation:
1) Terms of Employment (Information) Act CA-00002187-008
Complainant He stated that he did not get a written statement of his terms and conditions of employment. He has sought compensation. Respondent The Respondent did not attend and was not represented.
Findings Based on the uncontested evidence before the hearing I find that the Complainant did not receive a written statement of his terms and conditions of employment. I find that the Respondent has breached Sec 3 of this Act.
Sec 3 (1)of this Act states, “ An employer shall, not later than 2 months after the commencement of an employees employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment”. Decision:Section 41(4) of the Workplace Relations Act 2015 and under section 7 of the Terms of Employment (Information) Act, 1994,requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act. I have decided that the Respondent has breached Sec 3 of this Act. I require the Respondent to pay the Complainant compensation of €850 within six weeks of the date below.
2) 27 of the Organisation of Working Time Act, 1997 CA-00002187-002,- 004, -005, -006, -007 Complainant a)Sunday premium He stated that he worked every Sunday for a minimum of 9 hours. He received no premium for working Sundays. The Respondent has breached Sec 14.
b)Working in excess of 48 hours per week He stated that he worked 7 days every week on average of 9 hours per day totalling 63 hours minimum. The Respondent has breached Sec 15 of this Act
c)Breaks He stated that some days he received 1.5 hours breaks and other days especially the days that they were moving locations he received no breaks. There were no formal arrangements for breaks. The Respondent has breached Sec 12.
d)Public Holidays The season was from 1st February to 30th October. He worked all the Public Holidays in that period and he received no compensation for the Public Holidays. The Respondent has breached Sec 21.
e) Holidays He received no holidays or holiday pay at the end of each season. The Respondent has breached Sec 19.
Respondent The Respondent did not attend and was not represented.
Findings This complaint was presented to the Commission on 26th January 2016 therefore the period as per Sec 27 of this Act that may be investigated is to 27th July 2015. Based on the uncontested evidence I find as follows: -
a)Sunday premium I accept the Complainant’s uncontested evidence. Sec 14 (1) (b) “an employee who is required to work on a Sunday .. shall be compensated by otherwise increasing the employees rate of pay by such an amount as is reasonable having regard to all the circumstances b) by increasing the employees’ rate of pay by such an amount that is reasonable, c) by granting an employee such paid time off as is reasonable, d) or by a combination of two or more of the mean referred to in the preceding paragraph”. I find that the Respondent has breached Sec 14.
I find that he worked 14 Sundays up to the close of the season.
I find that a premium of time and one quarter is reasonable. Therefore I find that he should receive an additional €2.16 per hour worked (based on the then minimum wage of €8.65) = €2.16 X 9 hours X 14 Sundays = €272.16.
In addition I find that he should receive compensation of €300 for a breach of his rights under this Act.
b)Working in excess of 48 hours per week I accept the Complainant’s evidence.
I find that the Respondent has breached Sec 15 of this Act.
I find that he should receive €350 in compensation for breach of his rights under this Act.
c)Breaks I accept the Complainant’s evidence. Sec 12 of the Act sets out clearly the breaks that must be provided 12(1) “an employer shall not require an employee to work for a period of more than 4 hours 30 minutes without allowing him or her a break of at least 15 minutes”. 12(2)” “an employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes”. I find that the Respondent has breached Sec 12 of this Act.
I find that he should receive €350 in compensation for breach of his rights under this Act.
d)Public Holidays I accept the Complainant’s evidence in this matter.
Sec 21 (1) of the Organisation of Working Time Act on “entitlement in respect of Public Holidays” states “ an employee shall in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely (a) a paid day off on that day, (b) a paid day off within a month of that day, (c) an additional day of annual leave, (d) an additional day’s pay. In the allowable period I find that the August and October Public Holidays fell.
I find that he is owed two days pay amounting to €77.85 X 2 (based on the minimum wage 8.65 X 9 hours) = €155.70.
e) Holidays I accept the Complainant’s evidence in this matter.
Sec 19(1)a) “4 weeks in a leave year in which he or she works at least 1365 hours I find that holidays are accumulated on a calendar month basis.
I find that in 2015 he was entitled to 15 days holidays amounting to €1,167.75 based on the minimum wage.
In addition I find that he is entitled to compensation of €1,000 for a breach of his rights under this Act. Decision:Section 41(4) of the Workplace Relations Act 2015 under section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act. As per Sec 27(3) (a) I have decided that the complaint was well founded. As per Sec 27(3) (c ) I require the Respondent to pay the Complainant €1,595.61 for the economic loss and in addition compensation of €2,000 for breach of his rights under this Act. This is to be paid within six weeks of the date below.
3) The National Minimum Wage Act, 2000 CA-00002187-001 Complainant He was given €220 net per week and a caravan accommodation, which was substandard and should be disregarded for the purposes of the calculations. He provided his own food each day. For the period 16th June 2013 to 31st October 2013 he had arrears in wages of €6,499, (63 hours X 8.65 = 544.95 less 220 received = arrears of 324.95 per week X 20 weeks). For the period 1st February 14 to 31st October 2014 the arrears are €12, 673.05 (63 hours X 8.65 = 544.95 less 220 received = arrears of 324.95 per week X 39 weeks). For the period 1st February 2015 to 27th October 2015 the arrears are 12, 673 (63 hours X 8.65 = 544.95 less 220 received = arrears of 324.95 per week X 39 weeks). The total arrears are €31,845.10 less 98 weeks X €21.85 board allowance (if allowed) = €2,141.30 leaving a balance of €29,703.80
Respondent The Respondent did not attend and was not represented.
Findings Based on the uncontested evidence I find as follows: -
I find that the Complainant complied with the requirements of Sec 24 of this Act, the letter of request was supplied. I accept the Complainant’s uncontested evidence. I have reviewed the calculation and accept them.
I have decided to allow the board offset despite the rather substandard accommodation provided. Graphic photographs of the caravan accommodation were supplied.
I find that Complainant is owed €29,703.80 in arrears as claimed. Decision:Section 41(4) of the Workplace Relations Act 2015 under section 24 of the National Minimum Wage Act requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act. As per Sec 26 (2) (a) (i) I require the Respondent to pay arrears of €29,703.80 not later than 6 weeks after the date below.
4) The Unfair Dismissals Act, 1977 CA-00002187-009 Constructive Dismissal Complainant Throughout the employment the Complainant kept asking the Respondent to formalise the working relationship and make tax returns. They failed to do so. He asked for better facilities as the caravan provided was substandard and unhygienic. He was regularly mistreated by the Respondent who used aggressive behaviour towards him. Once he was violently pushed and he was regularly shouted at. He could no longer continue to work in such circumstances especially after they failed to deliver on promises of regularising his working relationship. He did not advise the Respondent that he was contemplating resigning his position. He was not given a contract of employment. He did not have a grievance procedure. He had raised many issues throughout the employment to no avail. He was out of work until mid December; he earned €254 per week. He got a full time job on 25th April 2016. He was unable to draw Social Welfare because there were no tax and PRSI returns made. He is seeking compensation
Respondent The Respondent did not attend and was not represented.
Findings Based on the uncontested evidence before this hearing I find as follows:- In order to succeed in a constructive dismissal claim it is necessary to demonstrate that the employer has been given every opportunity to address the grievances before contemplating resigning. Also it is necessary to exhaust the grievance procedure before resigning. The employer’s conduct is such that it was impossible to continue in that employment.
In this case I find that the Complainant had on many occasions raised issues about the regulation of the working relationship and the conditions of his accommodation and how he was treated. Despite many promises the Respondent never addressed these issues.
Therefore I find that the Respondent was given every opportunity to resolve his grievances but failed to do so.
I find that the Complainant did not exhaust the grievance procedure before resigning. However he was never given a copy of a grievance procedure. Therefore it would be grossly unfair to expect him to have exhausted a procedure that he was unaware of.
I find the Respondent’s conduct was such that the Complainant had no choice but to resign his position.
Therefore I find that he was constructively dismissed. Decision:Section 41(4) of the Workplace Relations Act 2015 Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act. I have decided that the Complainant was constructively dismissed. I order the Respondent to pay the Complainant compensation of €4,000 to be paid within six weeks of the date below.
Dated: 29th July 2016 Workplace Relations Commission Adjudication Officer: Eugene Hanly Key Words:
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ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00001679
Complaints for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000 |
CA-00002187-001 |
26/01/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 |
CA-00002187-002 |
26/01/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 |
CA-00002187-004 |
26/01/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 |
CA-00002187-005 |
26/01/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 |
CA-00002187-006 |
26/01/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 |
CA-00002187-007 |
26/01/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 |
CA-00002187-008 |
26/01/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 |
CA-00002187-009 |
26/01/2016 |
Venue: WRC Tom Johnson House, Haddington Rd, Dublin 4.
Date of Adjudication Hearing: 12/05/2016
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015, under section 7 of the Terms of Employment (Information) Act, 1994, under section 27 of the Organisation of Working Time Act, 1997, under section 24 of the National Minimum Wage Act, 2000 and Section 8(1B) of the Unfair Dismissals Act, 1977, following the referral of the complaints/disputes 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 was employed as Circus Rigger from 15th June 2013 to 27th October 2015. He was paid €220 into his hand each week and very basic accommodation. He worked an average of 63 hours per week minimum. She has made a number of complaints.
Complainant’s Submission and Presentation:
1) Terms of Employment (Information) Act CA-00002187-008
Complainant He stated that he did not get a written statement of his terms and conditions of employment. He has sought compensation. Respondent The Respondent did not attend and was not represented. Findings Based on the uncontested evidence before the hearing I find that the Complainant did not receive a written statement of his terms and conditions of employment. I find that the Respondent has breached Sec 3 of this Act.
Sec 3 (1)of this Act states, “ An employer shall, not later than 2 months after the commencement of an employees employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment”. Decision:Section 41(4) of the Workplace Relations Act 2015 and under section 7 of the Terms of Employment (Information) Act, 1994,requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act. I have decided that the Respondent has breached Sec 3 of this Act. I require the Respondent to pay the Complainant compensation of €850 within six weeks of the date below.
2) 27 of the Organisation of Working Time Act, 1997 CA-00002187-002,- 004, -005, -006, -007 Complainant a)Sunday premium He stated that he worked every Sunday for a minimum of 9 hours. He received no premium for working Sundays. The Respondent has breached Sec 14.
b)Working in excess of 48 hours per week He stated that he worked 7 days every week on average of 9 hours per day totalling 63 hours minimum. The Respondent has breached Sec 15 of this Act
c)Breaks He stated that some days he received 1.5 hours breaks and other days especially the days that they were moving locations he received no breaks. There were no formal arrangements for breaks. The Respondent has breached Sec 12.
d)Public Holidays The season was from 1st February to 30th October. He worked all the Public Holidays in that period and he received no compensation for the Public Holidays. The Respondent has breached Sec 21.
e) Holidays He received no holidays or holiday pay at the end of each season. The Respondent has breached Sec 19.
Respondent The Respondent did not attend and was not represented.
Findings This complaint was presented to the Commission on 26th January 2016 therefore the period as per Sec 27 of this Act that may be investigated is to 27th July 2015. Based on the uncontested evidence I find as follows: -
a)Sunday premium I accept the Complainant’s uncontested evidence. Sec 14 (1) (b) “an employee who is required to work on a Sunday .. shall be compensated by otherwise increasing the employees rate of pay by such an amount as is reasonable having regard to all the circumstances b) by increasing the employees’ rate of pay by such an amount that is reasonable, c) by granting an employee such paid time off as is reasonable, d) or by a combination of two or more of the mean referred to in the preceding paragraph”. I find that the Respondent has breached Sec 14.
I find that he worked 14 Sundays up to the close of the season.
I find that a premium of time and one quarter is reasonable. Therefore I find that he should receive an additional €2.16 per hour worked (based on the then minimum wage of €8.65) = €2.16 X 9 hours X 14 Sundays = €272.16.
In addition I find that he should receive compensation of €300 for a breach of his rights under this Act. b)Working in excess of 48 hours per week I accept the Complainant’s evidence.
I find that the Respondent has breached Sec 15 of this Act.
I find that he should receive €350 in compensation for breach of his rights under this Act.
c)Breaks I accept the Complainant’s evidence. Sec 12 of the Act sets out clearly the breaks that must be provided 12(1) “an employer shall not require an employee to work for a period of more than 4 hours 30 minutes without allowing him or her a break of at least 15 minutes”. 12(2)” “an employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes”. I find that the Respondent has breached Sec 12 of this Act.
I find that he should receive €350 in compensation for breach of his rights under this Act.
d)Public Holidays I accept the Complainant’s evidence in this matter.
Sec 21 (1) of the Organisation of Working Time Act on “entitlement in respect of Public Holidays” states “ an employee shall in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely (a) a paid day off on that day, (b) a paid day off within a month of that day, (c) an additional day of annual leave, (d) an additional day’s pay. In the allowable period I find that the August and October Public Holidays fell.
I find that he is owed two days pay amounting to €77.85 X 2 (based on the minimum wage 8.65 X 9 hours) = €155.70.
e) Holidays I accept the Complainant’s evidence in this matter.
Sec 19(1)a) “4 weeks in a leave year in which he or she works at least 1365 hours I find that holidays are accumulated on a calendar month basis.
I find that in 2015 he was entitled to 15 days holidays amounting to €1,167.75 based on the minimum wage.
In addition I find that he is entitled to compensation of €1,000 for a breach of his rights under this Act. Decision:Section 41(4) of the Workplace Relations Act 2015 under section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act. As per Sec 27(3) (a) I have decided that the complaint was well founded. As per Sec 27(3) (c ) I require the Respondent to pay the Complainant €1,595.61 for the economic loss and in addition compensation of €2,000 for breach of his rights under this Act. This is to be paid within six weeks of the date below.
3) The National Minimum Wage Act, 2000 CA-00002187-001 Complainant He was given €220 net per week and a caravan accommodation, which was substandard and should be disregarded for the purposes of the calculations. He provided his own food each day. For the period 16th June 2013 to 31st October 2013 he had arrears in wages of €6,499, (63 hours X 8.65 = 544.95 less 220 received = arrears of 324.95 per week X 20 weeks). For the period 1st February 14 to 31st October 2014 the arrears are €12, 673.05 (63 hours X 8.65 = 544.95 less 220 received = arrears of 324.95 per week X 39 weeks). For the period 1st February 2015 to 27th October 2015 the arrears are 12, 673 (63 hours X 8.65 = 544.95 less 220 received = arrears of 324.95 per week X 39 weeks). The total arrears are €31,845.10 less 98 weeks X €21.85 board allowance (if allowed) = €2,141.30 leaving a balance of €29,703.80 Respondent The Respondent did not attend and was not represented.
Findings Based on the uncontested evidence I find as follows: -
I find that the Complainant complied with the requirements of Sec 24 of this Act, the letter of request was supplied. I accept the Complainant’s uncontested evidence. I have reviewed the calculation and accept them.
I have decided to allow the board offset despite the rather substandard accommodation provided. Graphic photographs of the caravan accommodation were supplied.
I find that Complainant is owed €29,703.80 in arrears as claimed. Decision:Section 41(4) of the Workplace Relations Act 2015 under section 24 of the National Minimum Wage Act requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act. As per Sec 26 (2) (a) (i) I require the Respondent to pay arrears of €29,703.80 not later than 6 weeks after the date below.
4) The Unfair Dismissals Act, 1977 CA-00002187-009 Constructive Dismissal Complainant Throughout the employment the Complainant kept asking the Respondent to formalise the working relationship and make tax returns. They failed to do so. He asked for better facilities as the caravan provided was substandard and unhygienic. He was regularly mistreated by the Respondent who used aggressive behaviour towards him. Once he was violently pushed and he was regularly shouted at. He could no longer continue to work in such circumstances especially after they failed to deliver on promises of regularising his working relationship. He did not advise the Respondent that he was contemplating resigning his position. He was not given a contract of employment. He did not have a grievance procedure. He had raised many issues throughout the employment to no avail. He was out of work until mid December; he earned €254 per week. He got a full time job on 25th April 2016. He was unable to draw Social Welfare because there were no tax and PRSI returns made. He is seeking compensation
Respondent The Respondent did not attend and was not represented.
Findings Based on the uncontested evidence before this hearing I find as follows:- In order to succeed in a constructive dismissal claim it is necessary to demonstrate that the employer has been given every opportunity to address the grievances before contemplating resigning. Also it is necessary to exhaust the grievance procedure before resigning. The employer’s conduct is such that it was impossible to continue in that employment.
In this case I find that the Complainant had on many occasions raised issues about the regulation of the working relationship and the conditions of his accommodation and how he was treated. Despite many promises the Respondent never addressed these issues.
Therefore I find that the Respondent was given every opportunity to resolve his grievances but failed to do so.
I find that the Complainant did not exhaust the grievance procedure before resigning. However he was never given a copy of a grievance procedure. Therefore it would be grossly unfair to expect him to have exhausted a procedure that he was unaware of.
I find the Respondent’s conduct was such that the Complainant had no choice but to resign his position.
Therefore I find that he was constructively dismissed. Decision:Section 41(4) of the Workplace Relations Act 2015 Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act. I have decided that the Complainant was constructively dismissed. I order the Respondent to pay the Complainant compensation of €4,000 to be paid within six weeks of the date below.
Dated: 29th July 2016
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