ADJUDICATION OFFICER DECISION

                                                                           Adjudication Decision Reference: ADJ-00000169

Complaints for resolution:

Date of Adjudication Hearing: 06/01/2016

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On the 13^th October 2015, the complainant referred complaints to the Workplace Relations Commission under a number of employment law statutes, including the European Communities (Protection of Employees on Transfer of Undertakings) Regulations, the Employment Equality Acts, the Organisation of Working Time Act, the Maternity Protection Act, the Payment of Wages Act, the Terms of Employment (Information) Act and the Minimum Notice and Terms of Employment Act. The complaints were scheduled for adjudication on the 6^th January 2016.

In accordance with Section 41(4) of the Workplace Relations Act, 2015 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.

In advance of the adjudication hearing, the representative of the complainant corresponded with the Workplace Relations Commission to indicate that they were withdrawing the claims made pursuant to the Employment Equality Acts. He outlined that the claims under the Employment Equality Acts were to be pursued through the Circuit Court and they were pursuing the other complaints before this adjudication.

At the outset of the hearing, it became apparent that there was no appearance by or on behalf of the respondent company. I verified that it had been served with notification of the adjudication and having been satisfied of this, I proceeded with the hearing in its absence. The complainant attended in person and was represented by Solicitors.

2. Complainant’s Submission and Presentation:

The complainant commenced employment with the respondent in or around the 3^rd November 2014. The respondent operates a retail premises in south Dublin, specialising in products of Polish origin. She worked on the shopfloor and had to stand for a great portion of each day. In May 2015, the complainant informed the respondent of her pregnancy and her manager raised no issue about this. Later in May 2015, the manager provided her with a document entitled ‘contract of employment’. The complainant signed the document and dated it the 30^th May 2015. The contract provides that her employment commenced on the 8^th December 2014.

The complainant said that during the month of August 2015, the manager of the shop, and director of the respondent company, casually announced to staff that he would be putting the respondent into liquidation “to avoid his debts”. The complainant and her colleagues were advised that while the name of the business would change, the business would continue at the same location. After the complainant’s employment was terminated by the respondent, she learnt from conversations with existing shop staff that the shop continues to operate but the business has transferred from the respondent to a de facto partnership of two named individuals. The transfer took place on the 21^st September 2015. She received no formal notification of the transfer and was not consulted about it.

The complainant outlined that the respondent traded on a Sunday and therefore, Sunday was a normal working day. She outlined that she was not paid a Sunday premium and that she worked one Sunday in every two. It was submitted that it was custom and practice, and arising from the JLC agreements, to pay a premium of time and a third or time and a quarter for Sunday working. She outlined that she worked 175 Sunday hours in the period of the 1^st January 2015 to the 24^th August 2015. It was submitted that an award under this heading must do more than compensate the complainant and that she was entitled to compensation for the period from the 13^th April 2015 to the 13^th October 2015 (the date the complaint was referred to the Workplace Relations Commission). The complainant said that she received ten days of annual leave during the period of her employment; this leave was taken in June 2015.

On the 25^th August 2015, the complainant outlined that she was unable to work due to health complications arising from her pregnancy. Given that her role at work involved being on her feet, she went on health and safety leave. She was not paid in the weeks that followed. In or around the 30^th September 2015, the complainant said that she had a conversation with one of the new investors about returning to the workplace. She said that he was non-committal about her return, saying that he had to consult with the accountant and with his business partner. On the 1^st October 2015, she was issued with a P45, backdated to the 24^th August 2015.

The complainant outlines that she was underpaid in the July and August 2015. While the pay slips issued were correct, she received €758.78 less than she should have. She was claiming for this under the Payment of Wages Act. The complainant did not receive her statutory notice period at the time her employment was terminated.

Respondent’s Submission and Presentation:

The respondent did not attend the adjudication and did not make submissions in relation to the complaints submitted. The contract of employment submitted by the complainant states that the employer does not pay a Sunday premium, but provides that where an employee works on a Sunday, they will be entitled to a day off during the week.

Findings and reasoning:

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.

The complaints made in relation to alleged breaches of the Employment Equality Acts were withdrawn by the complainant, in order that they could be pursued in the Circuit Court. I, therefore, have not considered these aspects of the complaint and nor have I made findings in relation to them.

The only matter relating to the complainant’s pregnancy was her inability to work between the 25^th August 2015 and the 30^th September 2015, at which point, she enquired about returning to work. Neither the complainant’s ill-health, nor the fact that there was no alternative employment available for her were disputed. It follows that the complainant was entitled to avail of health and safety leave as provided by section 18 of the Maternity Protection Act. Under this section and the Maternity Protection (Health and Safety Leave Remuneration) Regulations, 1995, the complainant has acquired an entitlement to remuneration for 21 days. While the contract specifies that the working week is 30 hours per week, I note pay slips provided by the complainant indicate a working week of 35 hours. The pay for such a week is €332.50, leading to an entitlement of €997.50.

It is not disputed that the contract of employment was only provided to the complainant in May 2015 and no reason is provided for the delay in providing this document to the complainant. The complainant stated that her employment commenced in November 2014 and the contract states the date of commencement as December 2014. Even if the respondent is correct, it has not complied with the Terms of Employment (Information) Act. Pursuant to statute, the complainant is entitled to recover four weeks’ remuneration. Taking the complainant’s weekly earnings as €332.50, the award made under this heading is €1,330.

The respondent has not disputed that the complainant was underpaid by €758.78 for work undertaken in July and August 2015. She is, therefore, entitled to recover this amount, pursuant to the Payment of Wages Act. She is also entitled to one week’s remuneration pursuant to the Minimum Notice and Terms of Employment Act, this being €332.50.

I accept the complainant’s evidence that she worked one in every two Sundays. The contract of employment provided by the respondent provides that where an employee is obliged to work on a Sunday, the employee is entitled to a day off. I infer that this means a paid day off as this reading would be in compliance with the Code of Practice for Sunday Working in the Retail Trade (S.I. 444/1998). Taking the complainant’s typical work day as seven hours, her earnings on such a day is €60.55. It was submitted on behalf of the complainant that an award should be made for the period between the 24^th August 2015 (the last day the complainant worked at the respondent) and the 13^th October 2015 (the date the complaint was lodged). I do not think that such an award is possible as the complainant was not at work and therefore could not receive the benefit of a Sunday premium or equivalent. Applying the decision of Hogan J. in Health Service Executive v. McDermott [2014] IEHC 331, the relevant time period for this claim is the six months preceding the complaint dated the 13^th October 2015, i.e. the 13^th April 2015. There are 19 Sundays between the 13^th April 2015 and the 24^th August 2015 (and rounding the days worked by the complainant down to nine), the complainant is entitled to recover €544.95.

It was the evidence of the complainant that she received ten days’ annual leave in the period of her employment with the respondent. While the contract of employment provides that the leave year was the calendar year, the Organisation of Working Time Act provides that the leave year commences on the 1^st April and ends on the 31^st March of the following year. The complainant did not take any annual leave between the 3^rd November 2014 (the start of her employment) and the 31^st March 2015, when, pro rata, she was entitled to eight days. She is entitled to compensation for these eight days. Given that the complaint regarding the leave year of the 1^st April 2014 to the 31^st March 2015 was referred six months and only 13 days after the end of the leave year and because of the uncertainty caused by the respondent’s actions, I am satisfied that reasonable grounds exist to extend the limitation period. The complainant is entitled to recover €484.40 (taking the daily wage of the complainant as €60.55).

I find that the respondent, as transferor, did not comply with the information and consultation provisions contained in Regulation 8 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations. No evidence was proffered that the transfer did not occur. Pursuant to Regulation 10, I award the complainant the amount equivalent to four weeks’ remuneration, i.e. €1,330. The other claims relating to the transfer relate to the transferee.

Taking the above findings, the complainant is entitled to recover the total amount of €5,778.13 against the respondent. This comprises of the complainant’s entitlement to paid health and safety leave of €997.50; her claim under the Terms of Employment (Information) Act of €1,330; her claim under the Payment of Wages Act for €758.78; her claim under the Minimum Notice and Terms of Employment Act of €332.50; her claim of €544.95 for the Sunday premium she ought to have been paid per her contract of employment and her claim for unpaid annual leave of €484.40 and the award of €1,330 made pursuant to the European Communities (Protection of Employees on Transfer of Undertakings) Regulations. Applying the Labour Court determination in Grosvenor Cleaning Services Limited v. SIPTU (DWT0440), these awards are recoverable by the complainant against the respondent.

Decision:

The respondent shall pay €5,778.13 to the complainant in respect of the complaints subject to this adjudication and made pursuant to the Organisation of Working Time Act, the Maternity Protection Act, the Payment of Wages Act, the Terms of Employment (Information) Act and the Minimum Notice and Terms of Employment Act and the European Communities (Protection of Employees on Transfer of Undertakings) Regulations.

Dated:   5^th July 2016