ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00005514
Parties:
| Complainant | Respondent |
Anonymised Parties | Anna Zawadzka (General Operative) | Staffline Recruitment Limited (Recruitment Agency) |
Complaints:
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-00007674-001 | 17/10/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012 | CA-00007674-002 | 17/10/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00007674-003 | 17/10/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00007674-004 | 17/10/2016 |
Date of Adjudication Hearings: 13/04/2017 & 18/01/2018
Venue: Ardboyne Hotel, Navan
Workplace Relations Commission Adjudication Officer: John Walsh
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and under Section 6 of the Payment of Wages Act 1991 and under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012 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 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 was employed as a General Operative from the 14th September 2015 to the 14th June 2016. She was paid at the rate of €9.36 per hour. The Complainant is an agency worker, employed under a Contract of Employment and was assigned to work under the direction and supervision hirer. She alleges that the Respondent failed to pay her full entitlements under the Payment of Wages Act 1991, failed to provide her with a Contract of Employment in compliance with Section 3 of the Terms of the 1994 Act and failed to provide her with breaks in accordance with Section 12 of the Organisation of Working Time Act 1997. She filed her complaints with the WRC on the 17th October 2016. The Respondent attended the hearing held on the 13th April 2017. The Complainant presented her evidence in relation to the complaints. The hearing was adjourned to allow the Respondent to prepare a submission in relation to the evidence presented by the Complainant. The Respondent failed to attend the reconvened hearing which was held on the 18th January 2018. |
Summary of Complainant’s Case:
Reference Number: CA-00007674-002 – Protection of Employees (Temporary Agency Work) Act 2012
The Complainant filed her overall complaints under Section 25 of the Protection of Employees (Temporary Agency Work) Act 2012. The following are her complaints:
Reference Number: CA-00007674-001 – Payment of Wages Act, 1991
Preliminary Issue – Time Limits
The Complainant filed her complaint with the WRC on the 17th October 2016. The currency of this complaint runs from the 18th April 2016 to the 17th October 2016. A significant part of the Complainant’s complaint is not taken into account under the six-month time limit.
The Complainant attempted to resolve her complaints with the Respondent before the termination of her employment without success. The Complainant is a foreign national and was not paid the correct wages during the course of her employment. The Respondent failed to attended the second hearing to present evidence in relation to the complaints outlined by the Complainant at the first hearing. I have decided to extend the time limit by an additional six months in relation to the complaints outlined by the Complainant.
Pay Rates
The Complainant was paid at the rate of €9.36 per hour. She presented evidence at the hearing where she stated that she was paid less than other workers that were carrying out the same duties. She presented a pay slip for Ms. MS, which clearly stated that she was being paid at the rate of €9.95 per hour. I have decided to accept her evidence that she should have been paid at the rate of €9.95 per hour.
Holiday Pay
The Complainant stated that she worked a total of 1075 hours during the course of her employment. She stated that she received holiday pay for 40 hours only. She stated that she is entitled to 8% of hours worked in relation to holiday entitlements – that comes to a total of 86 hours. She received 40 hours in holiday pay, therefore she is entitled to an additional 46 hours holiday pay. Therefore, she is due an additional €457.70 in holiday pay (46 x €9.95).
Hours Due
The Complainant stated that she was not paid for the following hours that she worked.
8 hours unpaid on the 13th October 2015
8 hours unpaid on week 32 (2015)
10 hours unpaid on week 33 (2015)
6 hours unpaid 14th April 2016
8 unpaid on the 10th May 2016
Total hours unpaid: 40 hours x €9.95 = €398.00
Induction Hours Worked
The Complainant alleges that she worked 30 induction hours in August 2015 for which she was not paid. Hours unpaid: 30 x €9.95 = €298.50
Hours Worked at the Wrong Rate of Pay
The Complainant received holiday pay for 40 hours at the rate of €9.36 per hour. This came to €374.40. She should have been paid at the rate of €9.95 per hour. This comes to €398.00. Therefore, there is a shortfall in holiday pay of €26.60.
Balance of Hours Worked at the Wrong Rate
The Complainant worked a balance of hours of 919 at the rate of 9.36 = €8601.84.
She should have been paid at the hourly rate of €9.95. Therefore, she should have received = €9144.05. Therefore, there is a shortfall in pay of €542.21
Total Due
The Complainant is due outstanding wages of: €1723.01
Reference Number: CA-00007674-003 - Organisation of Working Time Act, 1997
The Complainant alleges that she was not given the statutory amount of time for her breaks in line with section 12(1) of the 1997 Act. This Act states that an employee must have a break of 15 minutes of working for a period of more than 4 hours and 30 minutes and a break of at least 30 minutes if working for a period of more than 6 hours. On the 30th May 2016 the Complainant worked 5.32 hours and had no rest break. On the 1st April 2016, she worked 5.28 hours and had no rest break. There were other days also that the Complainant did not receive breaks. The Respondent does not have any records in place, which show breaks taken by the Complainant.
Reference Number: CA-00007674-004 – Terms of Employment (Information) Act, 1994
The Complainant stated that she did not receive a written statement outlining her Terms and Conditions of Employment, which was in line with Section 3(1) of the 1994 Act.
- The Respondent failed to fill-in the Complainant’s full name on her Contract of Employment.
- The Respondent also failed to fill-in the title and nature of her job that the Complainant was to carry out.
- The Respondent failed to state her date of commencement of employment on her Contract of Employment.
Summary of Respondent’s Case:
The Respondent attended the hearing held on the 13th April 2017. The hearing was adjourned to allow the Respondent to prepare a submission in relation to the evidence presented by Complainant. The Respondent failed to attend the reconvened hearing which was held on the 18th January 2018. |
Findings and Conclusions:
Based on the uncontested evidence presented at the hearing I find that the complaints are well-founded. |
Decision:
Reference Number: CA-00007674-001 Section 6 of the Payment of Wages Act, 1991 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions of that Act.
Based on the uncontested evidence presented at the hearing, I find that this complaint is well founded. I order the Respondent to pay to the Complainant compensation in the sum of €1723.01
Reference Number: CA-00007674-003 Section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions of that Act.
Based on the uncontested evidence presented at the hearing, I find that this complaint is well founded. I order the Respondent to pay to the Complainant compensation in the sum of €300.00
These sums must be paid within six weeks of the date of these decisions. Recommendation:
Reference Number: CA-00007674-004 Section 7 of the Terms of Employment (Information) Act, 1994 requires that I make a recommendation in relation to the complaint in accordance with the relevant redress provisions of that Act.
Based on the uncontested evidence presented at the hearing, I find that this complaint is well founded. I recommend the Respondent to pay to the Complainant compensation in the sum of €457.70
This sum should be paid within six weeks of the date of this recommendation.
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Dated: 12.4.2018
Workplace Relations Commission Adjudication Officer: John Walsh
Key Words: