ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00007648
Parties:
| Complainant | Respondent |
Anonymised Parties | A Catering Assistant | A Cafe |
Complaint(s):
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-00010290-001 | 16/03/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00010290-004 | 16/03/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00010290-005 | 16/03/2017 |
Date of Adjudication Hearing: 13/10/2017
Workplace Relations Commission Adjudication Officer: Gerry Rooney
Procedure:
In accordance with Section 41 of the Workplace Relations Act, Section 24 of the National Minimum Wage Act, 2000 and section 27 of the Organisation of Working Time Act, 1997, 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.
The Respondent failed to attended hearing on the basis the Respondent maintained he did not receive notification of the hearing. However, a similar hearing for the Respondent was listed for later in the day with a similar case. As the Complainant made their complaint at the earlier hearing, and a submission was taken from the Respondent at the later hearing after the Complainant had departed. The Respondent also indicated they would contact the Complainant with a view to resolving matters. The Complainant has not been withdrawn.
Background:
The complainant who is a Romanian National was employed by the Respondent from the 21st November 2015 to 23rd November 2016 as a Catering Assistant/Chef. She alleged she did not receive the National minimum wage, she did not receive her holiday pay/annual leave entitlements, and did not receive her public holiday entitlements.
She worked on average 10 hours per day over a five or six-day week from the date of employment until her termination on 23 November 2016. She raised a complaint on 16 March 2017.
Summary of Complainant’s Case:
CA-00010290-001 Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000
The complainant maintained that from the 21st November to 31st December 2015 she worked 31 days for €50 a day where she worked on average 10-hour day amounting to €5 per hour. As the minimum wage at the time was €8.65 per hour this amounted to a shortfall from the minimum wage of €3.65 per hour, totalling €1,131.50.
The complainant maintained that from 1st January 2016 until 18th April 2016 she worked 88 days for €50 a day where she worked an average 10-hour day, amounting to €5 per hour. As the minimum wage at the time was €9.15 per hour this amounted to a shortfall from the minimum wage of €4.15 per hour, totalling €3,652
The complainant maintained that from 19th April 2016 to 7 the June 2016 she worked 28 days where she received €60 per day for an average 10-hour day, amounting to €6 per hour. As the minimum wage at the time was €9.15 per hour this amounted to a shortfall from the minimum wage of €3.15 per hour, totalling €882
The complainant also maintained that from 8th June 2016 to 23rd November 2016 she worked 148 days for €70 per day for an average 10-hour day, amounting to €7 per hour. As the minimum wage at the time was €9.15 per hour this amounted to a shortfall from the minimum wage of €2.15 per hour, totalling €3,182.
On that basis, the complainant maintained she was underpaid by total sum of €8,847.50.
The Complainant has sought a statement from the Respondent to ascertain how her weekly wage as calculated and failed to receive same from the Respondent.
CA-00010290-004 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997
The complainant maintained that she did not receive any paid annual leave during her period of work and therefore submitted that she was entitled to statutory 20 days annual paid leave.
CA-00010290-005 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997
The complainant maintained that she did not receive any public holiday entitlements over her working year and therefore she submitted she was entitled to 9 days public holiday entitlement.
Summary of Respondent’s Case:
CA-00010290-001 Response to Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000
The Respondent did not attend the hearing but attended later in the day at another hearing regarding a similar complaint from another employee. The Respondent argued that the Complainant received her minimum wage but the Respondent was not in a position to provide accurate records of what the Complainant was paid.
CA-00010290-004 Response to Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 Annual Leave Entitlement
The Respondent did not attend the hearing but attended later in the day at another hearing regarding a similar complaint from another employee. The Respondent denied that the Complainant was not paid her annual leave entitlements but failed to provide records regarding the payment of annual leave entitlements.
CA-00010290-005 Response to Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997
The Respondent did not attend the hearing but attended later in the day at another hearing regarding a similar complaint from another employee. The Respondent denied that the Complainant was not paid her public holiday entitlements but failed to provide records regarding the payment of public holiday entitlements.
Findings and Conclusions:
CA-00010290-001 Findings to Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000
Section 14 of the National Minimum Wage Act, 2000 establishes the entitlement to ‘an hourly rate of pay not less than’ the national minimum wage. As the minimum wage prior to 31st December 2015 was €8.65 per hour, and from 1 January 2016 was €9.15 per hour, based on the submission made I find the case well founded and that the Complainant was underpaid by a total sum of €8,847.50.
CA-00010290-004 Findings to Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997- Annual Leave Entitlement
Section 19(1)(a) of the Organisation Of Working Time Act 1997 provides that 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. As the complainant has worked these hours she is entitled to 4 working weeks paid annual leave. She maintained that when she took her annual leave during 2016 she was not paid for same. On that basis, I find that she is entitled to 4 weeks annual leave based on a 50-hour working week at the minimum wage of €9.15 which amounts to €1,830.
CA-00010290-005 Findings to Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997
Section 21 of the Organisation of Working Time Act provides for entitlements in respect of public holidays. I find that the Complainant, having worked for 52 weeks is entitled to her public holiday entitlements of 9 days, at €91.5 per day.
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00010290-001 Decision to Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000
Section 24 of the National Minimum Wage Act, 2000, as amended, requires that I make a decision in relation to a dispute in respect of the entitlements of an employee under section 41 of the Workplace Relations Act 2015. In making such a decision I may make a direction to the employer to pay to the employee an award of arrears, being the difference between any amount paid or allowed by the employer to the employee for pay and the minimum amount the employee was entitled to be paid or allowed in accordance with the Act in respect of the period to which the dispute relates, and reasonable expenses of the employee in connection with the dispute.
Based on the calculations provided by the Complainant and the lack of credible information provided by the Respondent, I direct that the Respondent pay the Complainant arrears of €8,847.50.
CA-00010290-004 Decision to Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 Annual Leave Entitlement
Section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in relation to breaches of section 19 of that Act. As I have found the Complainant did not receive her 20 days annual leave entitlements I require the Respondent to pay the Complainant arrears of €1,830.
CA-00010290-005 Decision to Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997
Section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in relation to breaches of section 21 of that Act. As I have found that the Complainant did not received his entitlements for 9 public holidays, I find the complaint is well made and I require the employer to pay the Complainant arrears of €823.5 for her public holiday entitlements.
Finally, and in addition to the payment of arrears set out above, and in light of the multiple breaches under the Organisation of Working Time Act, in accordance with Section 27(3)(c) I require the Respondent to pay the Complainant compensation of €500 being just and equitable having regard to all of the circumstances
Dated: 1st August 2018.
Workplace Relations Commission Adjudication Officer: Gerry Rooney
Key Words:
Annual Leave Entitlements, Public Holiday Entitlements, National Minimum Wage |