ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00008699
| Complainant | Respondent |
Anonymised Parties | Accounts Clerk | Bus Tour Operator |
Representatives | Leo Costello Citizens Information Service |
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Complaints:
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-00011562-001 | 25/05/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00011562-003 | 25/05/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00011562-004 | 25/05/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00011562-006 | 25/05/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00011562-007 | 25/05/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00011562-008 | 25/05/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00011562-009 | 25/05/2017 |
Date of Adjudication Hearing: 24/08/2017
Workplace Relations Commission Adjudication Officer: Ewa Sobanska
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 13 of the Industrial Relations Acts, 1969 following the referral of the complaints and the dispute to me by the Director General of the Workplace Relations Commission (hereinafter ‘WRC’), I inquired into the aforesaid complaints and the dispute and gave the Parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints and the dispute. I noted that an objection from the Respondent to the investigation of the dispute under Section 13 of the Industrial Relations Act, 1969 by an Adjudication Officer was submitted outside the three weeks period, after notice of the reference of the dispute to the WRC has been sent by post to the Respondent. Therefore, the objection shall be of no effect. I proceeded to a hearing on 24th August 2017. The Complainant was represented by the Citizens Information Service. There was no appearance on behalf of the Respondent at the hearing. I was satisfied that the Respondent had been properly notified of the hearing. I confirmed that it had not made any application for an adjournment, indicated any difficulty attending or otherwise engaged with the WRC. A period in excess of 14 days has been allowed to elapse after the hearing before issuing this decision, to allow for the Respondent to contact the WRC with an explanation for their non-attendance but no such contact has been made.
All oral evidence, written submissions and supporting documentation presented by both Parties have been fully taken into consideration.
Background:
The Complainant was initially employed as an Accounts Clerk by Tour Operator ‘A’ on the 1st August 2016. The Managing Director (‘MD’) of the Operator ‘A’ together with Mr X subsequently established another Tour Operator ‘B’, the Respondent. Operator ‘A’ was supplying coaches to Operator ‘B’. The Complainant asserted that as of 9th January 2017, the date of the establishment of the Operator ‘B’ she became an employee of Operator ‘B’, the Respondent. She worked for the Respondent from 9th January 2017 until 28th March 2017 when she resigned.The Complainant referred the following claims to the WRC: S. 24 of the National Minimum Wage Act, 2000 (payment below the minimum hourly rate) S. 6 of the Payment of Wages Act 1991 (non-payment of outstanding wages) S. 27 of the Organisation of Working Time Act 1997 (non-payment of annual leave and public holidays’ entitlements) S. 27 of the Organisation of Working Time Act 1997 (work in excess of the maximum permitted hours) S. 7 of the Terms of Employment (Information) Act, 1994 (failure to provide Terms of Employment) She also seeks resolution of a dispute under Section 13 of the Industrial Relations Act 1969, pertaining to the alleged sexual harassment by the Respondent. The Complainant is a non-EEA national permitted to study in Ireland on the basis of Stamp 2 issued by the Irish Naturalisation and Immigration Service. Stamp 2 indicates permission to study a full time course on the official Interim List of Eligible Programmes for a specified period, subject to conditions. Students holding a valid immigration stamp 2 permission are permitted work 40 hours per week only during the months of June, July, August and September and from 15 December to 15 January inclusive. At all other times students holding Immigration Permission Stamp 2 are limited to working 20 hours per week. |
Preliminary Issue
In a written submission to the WRC the Respondent disputed that the Complainant was an employee of the Respondent.
Summary of Complainant’s Case:
At the hearing the Complainant presented evidence showing that she performed work for the Respondent. She asserted that she reported to the MD, and Marketing Manager (‘MM’). She stated that her duties included amongst others: work on the design of promotional brochures, marketing, sales, accounts, tour guide duties, and work in the gift shop at the Respondent’s premises. She presented copies of her social media posts on behalf of the Respondent promoting the Respondent’s services and social media chats with the MM in relation to the Respondent’s business. |
Summary of Respondent’s Case:
There was no appearance on behalf of the Respondent at the hearing as outlined above. I note that the Respondent has engaged with the WRC and presented a written submission claiming that the Complainant has never been employed by the Respondent. However, no evidence has been proffered on behalf of the Respondent in this matter. |
Decision on preliminary issue:
Taking into consideration the written submission by the Respondent and the uncontested evidence presented by the Complainant at the hearing I am satisfied on the balance of probabilities that the Complainant was employed by the Respondent during the period from 9th January 2017 to 28th March 2017. |
CA-00011562-001 S. 24 of the National Minimum Wage Act, 2000 (payment below the minimum hourly rate) Summary of Complainant’s Case:
The Complainant claimed that her weekly wage was reduced from €500 per week to €150 per week but she was still working the same hours (7 days a week, 53 hours average per week, 7.57 hours average a day). She commenced her employment with the Respondent on the 9th January 2017 and her pay was agreed at €400 net plus additional €100 net for any work performed during weekends. She worked every weekend. However, in the period Jan-March 2017 she was paid irregularly by cash, €150 a week on average. She requested a statement of average hourly rate of pay from the Respondent on 16th August 2017. |
Summary of Respondent’s Case:
There was no appearance on behalf of the Respondent at the hearing as outlined above. No evidence has been proffered on behalf of the Respondent in this matter. |
Findings and Conclusions:
Sec 24 (2) of the National Minimum Wage Act, 2000 stipulates “The Director General of the Workplace Relations Commission shall not entertain a dispute in relation to an employee's entitlements under this Act and, accordingly, shall not refer the dispute to an adjudication officer under section 41 of the Workplace Relations Act 2015— (a) unless the employee— (i) has obtained under section 23 a statement of his or her average hourly rate of pay in respect of the relevant pay reference period, or (ii) having requested the statement, has not been provided with it within the time limited by that section for the employer to supply the information,”
I note that in her Complaint Form received by the WRC on the 25th May 2017 the Complainant stated that she has requested a statement of average hourly rate of pay from her employer but did not obtain same. However, at the time of the hearing the Complainant confirmed that the request was sent to the Respondent after the claim has been submitted to the WRC, specifically on 16th August 2017. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
The Complainant has not requested a statement of average hourly rate of pay from her employer prior to submitting her claim to the WRC. Therefore, I find that I have no jurisdiction to deal with the matter. |
CA-00011562-003 S. 6 of the Payment of Wages Act 1991 (non-payment of outstanding wages) Summary of Complainant’s Case:
The Complainant claimed that she was not paid the amount due to her and calculated her underpayment for the period up to end of March 2017 as €7,300. At the hearing the Complainant reviewed her calculations and submitted that, based on 53 hours worked on average each week she would have been paid €9.43 net per hour. She was off work on unpaid leave between 19th and 24th March 2017. She submitted that in the period 9th January – 28th March 2017 she would have worked 583 hours in total (583 x €9.43 = €5,497.69). She was paid by the Respondent €2,172 net in total. Therefore, outstanding wages amount to €3,325.69 net. The Complainant confirmed that she was aware of the conditions attached to the student Stamp 2 permission and she fully understood that she did not comply with them by agreeing to work in excess of permitted hours. |
Summary of Respondent’s Case:
There was no appearance on behalf of the Respondent at the hearing as outlined above. No evidence has been proffered on behalf of the Respondent in this matter. |
Findings and Conclusions:
Sec 1(1) of the Payment of Wages Act, 1991 defines wages as “any sum payable to the employee by the employer in connection with his employment”. I note that in the case Sullivan v Department of Education [1998] E.L.R. 217 the Tribunal took the word payable to mean ‘properly’ payable, i.e. all sums to which an employee is properly entitled. The Complainant is a non-EEA student residing in the State on the basis of Stamp 2. Under the conditions of Stamp 2 she was permitted to work up to 20 hours per week. During the months of June, July, August and September and from 15 December to 15 January inclusive she was permitted to work up to 40 hours a week. The Complainant confirmed that she was aware of these conditions and understood that by agreeing to work the hours she claims she has worked she did not comply with these conditions. In Bluechip Trading Limited v Helbawi [2009] I.R.L.R. 128 the claimant hadworked beyond the hours permitted by his foreign student visa.In the context of the complaint pursuant to the National Minimum Wage legislation in the United Kingdom the Employment Appeals Tribunal disallowed the claim related to the hours in excess of these permitted by his student visa. However, the EAT severed the lawful hours and allowed the claim in relation to those hours worked within the context of his student visa based on the important goal of enforcing minimum standards. The EAT held that the claimant could only recover for the hours he was working which were not in breach of his visa. In the case before me the Complainant was aware of the conditions of her permit and understood that she did not comply with these conditions. In the period from 9th to the 15th of January (one week) she was permitted to work up to 40 hours a week. However, from the 16th January 2017 until the 28th March 2017 (10 weeks and 2 days) she was permitted to work up to 20 hours a week (11 weeks x 20 hours). Therefore, the total of the lawful hours worked by the Complainant is 260 hours X €9.43 per hour (€2,451.80 in total). The Complainant confirmed that she was paid €2.172. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I find the complaint to be well founded in respect of the hours permitted by the student Stamp 2 visa. I direct the Respondent to pay the Complainant the sum of €279.80 net in respect of unpaid wages. |
CA-00011562-004
- 27 of the Organisation of Working Time Act 1997 (non-payment of public holidays’ entitlements)
Summary of Complainant’s Case:
The Complainant claimed that she did not receive proper payment for public holiday during her employment. During the period of her employment there was one public holiday, namely St. Patrick’s Day falling on the 17th March 2017. She worked on that day. |
Summary of Respondent’s Case:
There was no appearance on behalf of the Respondent at the hearing as outlined above. No evidence has been proffered on behalf of the Respondent in this matter. |
Findings and Conclusions:
On the uncontested evidence presented by the Complainant I find that the Complainant has not received her public holiday entitlement. I find that there was one public holiday within the period of my investigation, 17th March 2017. 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. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
On the uncontested evidence of the Complainant I declare this complaint is well founded. I have decided that the Respondent has breached Section 21 of the Organisation of Working Time Act, 1997. I require the Respondent to pay the Complainant €71.39 (additional day pay at 7.57 hour x €9.43) in respect of one public holiday (17th March 2017). |
CA-00011562-006
S. 27 of the Organisation of Working Time Act 1997 (non-payment of annual leave entitlements) Summary of Complainant’s Case:
The Complainant claimed that she did not receive her annual leave entitlements. |
Summary of Respondent’s Case:
There was no appearance on behalf of the Respondent at the hearing as outlined above. No evidence has been proffered on behalf of the Respondent in this matter. |
Findings and Conclusions:
The complaint was presented to the WRC on the 25th May 2017 and therefore I may adjudicate on the full period of employment from the 9th January 2017 until 28th March 2017. Section 23 of the Organisation of Working Time Act, 1997 provides that an employer should pay an employee accrued annual leave on termination of the employment. Section 19 of the Organisation of Working Time Act, 1997 stipulates that: (1) Subject to the First Schedule(which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to— a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment), b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks): Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater. The Complainant can only recover her annual leave entitlements based on the hours she was working in compliance with her Stamp 2 permission. In the period from 9th to the 15th of January (one week) she was permitted to work up to 40 hours a week. However, from the 16th January 2017 until the 28th March 2017 (10 weeks and 2 days) she was permitted to work up to 20 hours a week (11 weeks x 20 hours). Therefore, the total of the lawful hours worked by the Complainant is 260 hours. The annual leave entitlement accrued is 260 hours x 8% = 20.80 hours at €9.43 = €196.14 net. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
On the uncontested evidence of the Complainant I declare this complaint is well founded. I have decided that the Respondent has breached Section 19 of the Organisation of Working Time Act, 1997. I require the Respondent to pay the Complainant €196.14net for the economic loss in respect of the annual leave. In addition I require the Respondent to pay the Complainant an additional €200 in compensation for breach of her rights under this Act. |
CA-00011562-007
- 27 of the Organisation of Working Time Act 1997 (work in excess of the maximum permitted hours)
Summary of Complainant’s Case:
The Complainant claimed that she worked excessive hours over a three month period (January-March 2017). She claimed that her normal working week was 53 hours a week. |
Summary of Respondent’s Case:
There was no appearance on behalf of the Respondent at the hearing as outlined above. No evidence has been proffered on behalf of the Respondent in this matter. |
Findings and Conclusions:
Sec. 15 (1) of the Organisation of Working Time Act, 1997 stipulates that “An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over period …that does not exceed a) 4 months or b) 6 months…” I accept that the Complainant cooperated with the Respondent in relation to the excessive hours and accepted that an appropriate payment would be made in respect of these. The Complainant was fully informed of the conditions attached to her student permit and was aware that by agreeing to work in excess of the hours permitted she did not comply with these conditions. However, the Complainant stressed that she was very concerned about possible consequences of her refusal to work the hours as requested by the Respondent. It is clear that the Respondent held the balance of power in this case and, understandably, she was afraid she would lose her job. The Respondent was aware of the Complainant’s immigration status. Nevertheless, they not only permitted but required her to work in excess of the permitted hours. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
On the uncontested evidence of the Complainant I declare this complaint is well founded. Taking all the circumstance of the case into account I direct the Respondent to pay the Complainant compensation of €500 for breach of the Organisation of Working Time Act, 1997. |
CA-00011562-008 S. 7 of the Terms of Employment (Information) Act, 1994 (failure to provide Terms of Employment)
Summary of Complainant’s Case:
The Complainant claims that she didn’t receive a written statement of Terms of Employment. She approached the Respondent regularly requesting one. |
Summary of Respondent’s Case:
There was no appearance on behalf of the Respondent at the hearing as outlined above. No evidence has been proffered on behalf of the Respondent in this matter. |
Findings and Conclusions:
Section 3(1) of the Terms of Employment (Information)Act, 1994 stipulates that “An employer shall, not later than 2 months after the commencement of an employee's 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…” On the uncontested evidence of the Complainant I find that the Complainant was not provided with a written statement of Terms and Conditions of Employment as per Section 3 of the Act. The Respondent has breached Section 3 of the Act. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
For the reasons outlined above I form the view that the Respondent was in breach of Section 3 of the Terms of Employment (Information), Act 1994 and that the Complainant should have been furnished with the written statement of Terms and Conditions of Employment. Therefore, compensation is warranted. Section 7(2)(d) of the Act states that an employer can be ordered “to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 4 weeks remuneration”. I direct the Respondent to pay the Complainant compensation of €377 net (2 weeks remuneration based on 20 hours at €9.43). |
CA-00011562-009 Section 13 of the Industrial Relations Act 1969, pertaining to the sexual harassment by the Respondent.
Summary of Complainant’s Case:
The Complainant submitted that she was sexually harassed by her employer over a prolonged period. The Complainant asserted that from late January 2017 until she resigned on 28th March 2017 she suffered continuous sexual abuse from the MD. She stated that he would hug her and these hugs became more prolonged and she was continually asked for a hug every time MD left the office. The Complainant maintained that she objected to these by saying, “don’t touch me” and putting up her hands to stop him but in many instances he overpowered her. The Complainant asserted that she was seated in a chair adjacent to the wall of the shop with the MD seated next to her. The MD would have to stand up and move aside to allow the Complainant leave her location. On the week commencing 13th March 2017 the MD insisted on kissing the Complainant when he was leaving the office. She objected to this but he persisted and caught her head and pulled her toward him and tried to kiss her in the lips. The Complainant lowered her head to prevent this and the MD kissed her on the forehead. MM was a witness to this incident. The Complainant was away from the 19th to 24th of March 2017 and returned to work on 25th March. The MD continued to hug her without her consent on 25th and 26th of March. She did not see him on the 27th of March. The Complainant terminated her employment of the 28th of March 2017. The Complainant stated that the effects on her of the sexual abuse were feelings of disgust and she still feels that way. Her self-confidence was very low during the abuse and deteriorated as time passed. Her trust in people in Ireland was very poor as she always thought that everyone wanted to take advantage of her. She is now leaving Ireland and intends to seek professional help on her return to her home country. The Complainant claimed that she was intimidated by the MD and felt that there was no one she could approach for help and she was fearful about losing her job. The Complainant stated that she spoke with the MM about the matter but he told her that it was only a ‘joke’. The Complainant maintained that there was no bullying & harassment or dignity at work procedures in the company. |
Summary of Respondent’s Case:
There was no appearance on behalf of the Respondent at the hearing as outlined above. No evidence has been proffered on behalf of the Respondent in this matter. |
Findings and Conclusions:
Sexual harassment is defined in Section 14A(7) of the Employment Equality Act as any form of unwanted verbal, non-verbal or physical conduct of a sexual nature which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. There are many forms of behaviour can constitute sexual harassment examples of which are listed in the S.I. No. 208/2012 - Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012. Physical conduct of a sexual nature which may include unwanted physical contact such as unnecessary touching, patting or pinching or brushing against another employee’s body constitutes sexual harassment. I note that the Claimant asserted that she was subjected to physical unwanted conduct of sexual nature by the MD. At the relevant time the Respondent had no anti-harassment or dignity at work policy, written or verbal in operation. Moreover, the Respondent’s company consisted of two Directors, one of whom was the alleged harasser, and the Marketing Manager. The Complainant stated that the Marketing Manager has witnessed one of the incidents and when approached by the Complainant he described it as a “joke”. The Complainant did not know what to do or who to go to. This is entirely understandable in the circumstances. It is therefore unsurprising that the Complainant believed that there was no other alternative but to resign. The Respondent’s absolute failure to have any procedure in place to handle complaints of harassment / sexual harassment means that it cannot rely on the statutory defence available. I note that despite having been notified in writing of the date, time and location of the hearing, the Respondent was not in attendance. Accordingly, I only have the evidence and submissions of the Complainant to rely upon. The Complainant’s evidence demonstrates that she was subjected to utterly inappropriate and unacceptable behaviour. The claim has been submitted to the WRC under the Industrial Relations Act, 1969 not under Employment Equality Acts, 1998 which provides for considerable redress. While the industrial relations disputes have a different role, in making my recommendation I am guided by some of the decisions issued under the Employment Equality Act, 1998. |
Recommendation:
Section 13 of the Industrial Relations Acts, 1969-2015 requires that I make a recommendation in relation to the dispute.
This Recommendation is confidential to the Parties and cannot be used by them or any other person in relation to any other dispute at this or any other forum. On uncontested evidence from the Complainant and having given careful consideration to the Parties’ submissions I recommend the following: · That the Respondent pays to the Complainant the sum €10,000 by way of compensation for the distress of the sexual harassment.
· That the Respondent immediately adopt, implement and monitor a comprehensive, effective and accessible policy on sexual harassment, harassment and dignity at work
· That a copy of the policy is given to all existing and new staff (on arrival) and that staff are fully acquainted with its contents. In addition, copies of the policy, or a brief synopsis should be displayed in prominent positions in the workplace.
· That all staff who have staff management functions receive appropriate training in the policy and that this training is kept under review in light of development / best practice in the area.
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Dated: 12th April 2018
Workplace Relations Commission Adjudication Officer: Ewa Sobanska
Key Words:
Sexual harassment, terms of employment, annual leave, public holidays, excessive hours, legality of contract, visa |