ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001147

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 14/03/2016

Workplace Relations Commission Adjudication Officer: Emile Daly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

Transfer of Undertaking Directive (77/187/EEC)

The Claimant submitted the following:

She worked as the housekeeper in a hotel in the midlands.

She was on a series of employment contracts which ran from June 2007 until she was dismissed on 1 January 2016.

The Claimant submitted that her employment contracts ran successively and constituted a series of transfers of undertaking. As a result, she claims, that any claim for unpaid wages arising under a preceding employment, within the chain of contracts, flows, as a liability, to the Respondent, as the last employer in the chain.

Series of contracts

1. From June 2007 until July 2013 she was employed by a partnership “A”

2. From July 2013 until March 2014 she was employed by an individual “B” under a trading name

3. From March 2014 until August 2015, she was employed by a company with limited liability “C”

4. From August 2015 until October 2015, she was employed by an individual “D”

5. From October 2015 until January 2016, she was employed by a company with limited liability “E”

The Claimant stated that the job that she did and the terms upon which she was engaged, remained the same throughout her employment. The only difference was the operator of the hotel.

The Claimant produced documentary evidence, by way of signed contracts, to evidence each time the undertaking changed hands. These contracts identified the above employers.

There was no written contract with individual “D”, but there were hand written pay slips signed by him as proof of the employment.

There was no written contract with company “E” however in January 2016, she was issued with a P60 tax form which indicated that her employer was “E”, the Respondent.

Payment of Wages Claim

The Claimant gave evidence that she was not paid for two weeks between 28/9/15 – 4/10/15 and 5/10/15 – 11/10/15

I am satisfied that her pay at this time was €452 net per week. The claim for unpaid work amounts to a total of €904

Holiday Claim

The Claimant was not paid for any public holidays in 2013, 2014 and 2015. Her claim relates to 2014 and 2015.

She claims that in 2013 she was not paid for 5.44 hours of public holiday. She claims that in 2014 she was not paid for 220.78 hours of public holiday and in 2015 she was not paid for 9.84 hours of public holiday.

Under the Organisation of working Time Act 1997, entitlement to be paid in lieu of public holidays is accrued on the day of each public holiday. A claim must be brought within 6 months of the date of accrual or 12 months where reasonable cause is shown for the failure to bring the claim within six months.

Respondent’s Submission and Presentation:

There was no appearance by or on behalf of the Respondent

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Issues for Decision:

Whether the Claimant was employed by the Respondent

Whether a transfer of undertaking occurred on 16 October 2015, transferring the employment contract to the Respondent

Whether the Claimant is entitled to her claim under the Payment of Wages Act 1991 for two weeks unpaid work

Whether the Claimant is entitled to be paid for unpaid public holidays for 2014 and 2015.

Legislation

Payment of Wages Act 1991

Organisation of Working Time Act 1997

Transfer of Undertaking Directive (77/187/EEC)

Decision:

Payment of Wages Claim

As there was no appearance on behalf of the Respondent and the Adjudicator having been satisfied that the Respondent was on notice of the hearing the decision was as follows:

Based on the documentary evidence produced by the Claimant, in particular the P60 issued by the Respondent, I am satisfied that the Claimant was employed by the Respondent from 16 October 2015 until 1 January 2016.

Based on the documentary evidence and the uncontested evidence of the Claimant I am satisfied that there was a transfer of undertaking on 16 October 2015 and that any liabilities that lay against the previous employer, flowed to the Respondent.

On this point the following ECJ authorities apply:

Forengingen af Arbejdsledere I Danmark v. Daddy’s Dance Hall A/S [1988] IRLR 315

Landsorganisationen I Danmark v. Ny Molle Kro [1989] IRLR 37

I am satisfied that the Claimant was not paid for two weeks between 28/9/15 – 4/10/15 and 5/10/15 – 11/10/15 and I am satisfied that her pay at this time was €452 net per week. Based on the uncontested evidence of the Claimant, I am satisfied that the claim for unpaid work amounting to a total of €904, is well founded.

Unpaid Public Holidays Claim

The claim was instituted in January 2016.

I am precluded from considering claims for unpaid holidays which fall outside 6 months from the date of the breach or 12 months, if reasonable cause is shown why the case was not presented within 6 months (section 27 (3) and (4) of the Organisation of Working Time Act 1997)

Therefore the claims for 2013 and 2014 are out of time. It should also be stated that the claim for 2013 public holidays was not sought in the application, so for that reason also, cannot be considered.

In respect of claim for public holidays in 2015, I will deal with this now.

As the claim was lodged in January 2016, the claim for holiday pay is normally restricted to the period of six month prior to that, or twelve months if there was reasonable cause for the delay in bringing the proceedings.

I am satisfied, based on the uncontested evidence of the Claimant, that she continuously sought relief with her employer during 2015 but was told that to would be sorted out later, which never happened. I am satisfied that the reason for the delay in bringing the claim was due to this false comfort and also because the employer’s identity kept changing, which I am satisfied constituted reasonable cause. Therefore I propose to make an award on the basis of the previous 12 months. The claim for 2015 holidays is 9.84 hours. I am satisfied that the Claimant was paid €12 per hour and therefore her award for unpaid holidays in 2015 is €118.08

Conclusion

I find that the claim is well founded and make the award of €118.08 for unpaid public holidays and €904.00 for unpaid wages.

Dated:   26^th July 2016