ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000423

Complaints for Resolution:

Date of Adjudication Hearing: 2nd March 2016

Workplace Relations Commission Adjudication Officer:  Kevin Baneham

Procedure:

On the 5^th November 2015, the complainant referred complaints to the Workplace Relations Commission pursuant to the Organisation of Working Time Act and the Payment of Wages Act. The complainant is a hairdresser and the respondent is a hair salon.

The complaints were scheduled for adjudication on the 2^nd March 2016. The complainant attended the adjudication and was represented by a representative. A former colleague attended as her witness. The respondent attended and was represented by Warren Parkes, solicitor.

In accordance with Section 41(4) of the Workplace Relations Act, 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.

Complainant’s Submission and Presentation:

The complainant worked as a hairdresser with the respondent and its predecessor from February 2001 to the 12^th June 2015. She went on unpaid certified sick leave in December 2014 and the respondent business was subject to a transfer of undertaking in February 2015, when the respondent acquired the business. Her employment came to an end in circumstances where the Department store in which the business was situated closed down very abruptly.

The complainant outlined that she had a separate complaint in relation to a redundancy lump sum payment that was not part of this claim.

In relation to the complaint made pursuant to the Organisation of Working Time Act, the complainant said that she was claiming for days of annual leave she was entitled to take but did not take because of her sick leave. She took no annual leave in the leave year commencing on the 1^st April 2015 and took only five days' annual leave in the leave year of the 1^st April 2014 to the 31^st March 2015. The complainant said that she was also claiming for the five public holidays that occurred in 2015 up to the end of her employment on the 12^th June 2015. While the issue of public holidays is not specifically mentioned in the complaint form, she said that she understood it would form part of this claim.

In relation to the Payment of Wages claim, the complainant outlined that she had worked a back week, so that she was entitled to one week's basic pay of approximately €320. This was the custom and practice in the hairdressing industry and people ordinarily received this week's back pay when they left an employment. The witness said that the pay that was received in a Friday would be for the week ending the previous Sunday. The complainant and the other witnesses referred to the employee handbook provided by the respondent that refers to such an arrangement. The complainant said that her last pay was received in December 2014 but she had not received a pay slip for this payment. The last pay slip she received was in November 2014 and was issued to her by email.

Respondent’s Submission and Presentation:

The respondent outlined that the complainant was limited to the issues disclosed in the complaint form. He further submitted that the complainant was not entitled to claim for annual leave accrued during sick leave as the employer was not an emanation of the State, relying on the decision of the Employment Appeal Tribunal in An Employee v An Employer (UD763/2011, WT318/2011). The respondent outlined that the extension of the entitlement to accrued annual leave during periods of sickness was provided by section 86 of the Workplace Relations Act, 2015 and enacted after the complainant's period of sick leave. The respondent outlined that he was a sole trader and had acquired the business following a transfer of undertaking in February 2015. The respondent said that the complainant could only claim for six months preceding the date of her complaint.

In respect of the Payment of Wages claim, the respondent outlined that the claim was made out of time as it relates to a payment due at the very commencement of employment, i.e. in 2001. It was submitted that the complainant had not provided documentary evidence to support her claim and that her actual claim was for unpaid commission from this week in 2001. The respondent outlined that all parties had been paid what was due and no-one else had sought payment for this week.

Findings and reasoning:

These claims are made pursuant to the Organisation of Working Time Act and the Payment of Wages Act; the entitlement of the complainant to a redundancy lump sum payment was not part of this adjudication.

The complainant outlines that she is entitled to payment for both annual leave and public holidays during the period she was on certified sick leave. She also claims payment of one week’s wages as back-pay due to her. The respondent denies that it is liable for the payments sought by the complainant.

Section 86 of the Workplace Relations Act amended Part III of the Organisation of Working Time Act to allow for the accrual of annual leave while the employee is on certified sick leave. This amendment was commenced on the 1^st August 2015. Given that the complainant’s employment came to an end prior to the commencement of this provision, her entitlement to paid annual leave is ascertained according to the law predating this amendment.

Section 19 of the Organisation of Working Time Act provided as follows:

(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)”

Section 2 provides for the following definition of “working time” and “work”:

“working time” means any time that the employee is— (a) at his or her place of work or at his or her employer's disposal, and (b) carrying on or performing the activities or duties of his or her work, and “work” shall be construed accordingly.”

The respondent opened An Employee v An Employer, where the Employment Appeals Tribunal concluded that because “the claimant was not at her place of work, was not at the respondent’s disposal and was not carrying on or performing the activities or duties of her work, the claim under the Organisation of Working Time Act, 1997 fails.”

In An Employer v An Employer, the Employment Appeals Tribunal concluded that it could not interpret the above statutory provisions in conformity with Directive 2003/88/EC. It held “the Tribunal finds it is restricted from deciding this claim in accordance with the decision of the ECJ in Stringer & Others v Her Majesty’s Revenue and Customs (Case No C-350/06) in circumstances where the respondent is not a public employer and where the wording of s.2 and s.19 of the Organisation of Working Time Act 1997 cannot be interpreted in a way that is consistent with the decision in Stringer which held, inter alia, “with regard to workers on sick leave which has been duly granted, the right to be paid annual leave conferred by Directive 2003/88 itself on all workers cannot be made subject by a Member State to a condition concerning the obligation actually to have worked during the leave year laid down by that State”.

In Seclusion Properties v O’Donovan DWT14114, the Labour Court, in considering these same provisions, concluded “[T]here is no issue that the Act, literally construed, does not afford the Claimant the entitlement for which he contends.” Furthermore, it concluded a claimant must be able to show that he or she can rely on the direct effect of the EU Directive. As the Labour Court held in Sparantus Ltd v Jemiola DWT 14110:

“The Directive cannot have direct effect in a case involving private parties. There are circumstances in which reliance can be place on a Directive in a dispute to which the doctrine of direct effect is inapplicable by application of the related doctrine of conforming or consistent interpretation. The most oft-quoted formulation of the doctrine was provided in Case C-106/89, Marleasing SA v La Comercial Internacionale de Alimentacion SA[1990] ECR 1-4135, as follows: -             “[I]n applying national law, whether the provisions in question were       adopted before or after the directive, the national Court called upon to      interpret it is required to do so, as far as possible, in light of the wording   and purpose of the directive in order to produce the result pursued by the            latter”

It is well settled that the application of that doctrine is not without its limitations and cannot be used as a basis for a contra legem interpretation of national law.”

In this case, the employer is a private actor and the complainant is, therefore, unable to rely on the direct effect of Article 7 of Directive 2003/88. While she was on certified sick leave, the complainant did not “work” for any of the leave year and she was also not at her place of work or at her employer’s disposal, and was not carrying on or performing the activities or duties of his or her work at this time. In spite of the clear dicta of the Court of Justice of the European Union in Stringer and other cases, any other interpretation of section 19 (as it pertained prior to the 1^st August 2015) would be contra legem and not permissible.

The second issue relates to pay for public holidays. Section 21 provides for paid public holidays; the issues arising from the definition of “working time” and “work” do not arise here. The complainant advances this as part of her claim; the respondent challenges her entitlement to do so. I find that she is entitled to pursue this aspect of her claim. I note that the complainant selected as redress under the Organisation of Working Time Act “paid holiday/annual leave entitlement”; I find that the reference to “paid holiday” includes public holidays. The scope of this claim is determined by the date of referral of the complaint to the Workplace Relations Commission, i.e. the 5^th November 2015. Pursuant to section 41 of the Workplace Relations Act, the temporal scope of claims is six months from the date of contravention. Given that the complainant’s employment ended on the 12^th June 2015, the only public holiday that fell in the six months preceding the complaint and at a time she was employed by the respondent is the June public holiday, which fell on the 1^st June 2015. While the complainant is one day out from the May 2015 public holiday (4^th May 2015), I do not see any cause to extend time. I find that I am entitled to award the complainant redress of €64 for the June 2015 public holiday. This is the per diem rate (€320/5) and given that the complainant was on sick leave from December 2014, the exceptions provided in the third schedule of the Organisation of Working Time Act (in particular sections 1 and 2) do not apply in this case.

The third issue relates to pay for the back-week of €320 the complainant says she is due. There was a conflict in evidence over whether this was, in fact, a back-week or whether it was unpaid commission from the commencement of the complainant’s employment in 2001. I resolve this conflict in favour of the complainant, on the basis of her and the witness’ evidence regarding what happened in this case and what was custom and practice. The second question is whether the failure to pay the back-week is a contravention made within time.

Section 1 of the Payment of Wages Act provides for the following definition of “wages”:

“wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including— (a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice.

Applying the decision of Hogan J. in Health Service Executive v. McDermott [2014] IEHC 331, the relevant time period for a claim pursuant to the Payment of Wages Act relates to contraventions within the six month period preceding the date of the complaint.

The question here is when was the contravention? Was it when the first week was paid in arrears in 2001 or was it at the end of the complainant’s employment, when this last payment in arrears was due? I find that the contravention occurred at the end of the complainant’s employment as this was the time in which the payment of a week’s wages in arrears was due to the complainant. It follows the complaint is made within time and the complainant is entitled to redress of €320.

Decision:

Section 41(4) 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.

With regard to the claims pursuant to the Organisation of Working Time Act, the complainant is not entitled to redress for annual leave while she was on certified sick leave. The complainant is entitled to recompense for the June 2015 public holiday; the respondent shall pay to the complainant €64 in this regard.

With regard to the claim pursuant to the Payment of Wages Act, the respondent shall pay to the complainant the amount of €320, this being one week’s wages owed to the complainant.

Having regard to the above decisions, the respondent shall pay to the complainant the total amount of €384 as redress for the breaches of the Organisation of Working Time Act and the Payment of Wages Act.

Dated:   8^th August 2016