ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001856

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

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00002557-001	11/02/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00002557-002	11/02/2016

Date of Adjudication Hearing: 17/06/2016

Workplace Relations Commission Adjudication Officer: Marguerite Buckley

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:

The Claimant did not appear in person because she believed her husband who was here representative could deal with the matter on her behalf. The Complainant’s representative confirmed that if required the Complainant could be available on another date to give evidence.

The Respondent did not appear either but had submitted documentation to the WRC namely a tax deduction card for 2015, a P60, P45 and calculation of holiday pay entitlements.

I proceeded on the basis of the written submissions from both parties.

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.

The Complainant started work with the Respondent on the 19^th of September 2015 as a beauty therapist. She went on sick leave on the 11^th of November 2015 to her date of resignation on the 19^th of January 2016.

Her hourly rate of pay was €11.00 per hour. She worked different hours each week as per her tax deduction card.

Her first claim was in relation to public holiday entitlements. She did not get paid for Christmas Day, St. Stephen’s day or New Year’s Day. The salon was not open on these days.

The Complainant was on sick leave immediately prior to these dates due to a workplace injury. She was not paid sick pay during this period of sick leave.

The Complainant was paid €62.70 gross for the last Monday in October public holiday.

Section 21(5) of the Organisation of Working Time Act 1997 sets out the provision of public holiday entitlement while on leave

(5) Subsection (1) shall not apply, as respects a particular public holiday, to an employee who is, other than on the commencement of this section, absent from work immediately before that public holiday in any of the cases specified in the Third Schedule .

THIRD SCHEDULE

Entitlement under section 21 in respect of Public Holidays: Exceptions

Section 21 (5).

Each of the following are the cases mentioned in section 21 (5) of absence by the employee concerned from work immediately before the relevant public holiday:

Social Welfare (Consolidation) Act, 1993 ),
paragraph 1) or by reason of any disease from which the employee suffers or suffered,
paragraph 1 or 2 but being an absence authorised by the employer, including a lay-off,

I am awarding the Complainant her public holiday entitlement for the days

25^th December 2015 and 26^th December 2015 and 1^st January 2016.

This award is taxable in the normal way.

The Complainant’s second claim was in relation to holiday/annual leave.

The complainant was paid her holidays up to the 29^th of November 2015. Her holiday entitlement for December 2015 and to the 19^th of January 2016 was on the basis of section 86 of the Workplace Relations Act 2016 which amended the Organisation of Working Time Act 1997 which relates to the accrual of annual leave while on sick leave.

(1) The Organisation of Working Time Act 1997 is amended—
(a) in section 19, by the insertion of the following subsection:
“(1A) For the purposes of this section, a day that an employee was absent from work due to illness shall, if the employee provided to his or her employer a certificate of a registered medical practitioner in respect of that illness, be deemed to be a day on which the employee was—
(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.”,
(b) in section 20, by the substitution of the following paragraph for paragraph (c) of subsection (1):
“(c) to the leave being granted—
(i) within the leave year to which it relates,
(ii) with the consent of the employee, within the period of 6 months after the end of that leave year, or
(iii) where the employee—
(I) is, due to illness, unable to take all or any part of his or her annual leave during that leave year or the period specified in subparagraph (ii), and
(II) has provided a certificate of a registered medical practitioner in respect of that illness to his or her employer,
within the period of 15 months after the end of that leave year.”,
and
(c) in section 23, by the substitution of the following subsection for subsection (1):
“(1) (a) Where—
(i) an employee ceases to be employed, and
(ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee,
the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave.
(b) In this subsection—
‘relevant period’ means—
(i) in relation to a cessation of employment of an employee to whom subparagraph (i) of paragraph (c) of subsection (1) of section 20 applies, the current leave year,
(ii) in relation to a cessation of employment of an employee to whom subparagraph (ii) of the said paragraph (c) applies, that occurs during the first 6 months of the current leave year—
(I) the current leave year, and
(II) the leave year immediately preceding the current leave year,
(iii) in relation to a cessation of employment of an employee to whom subparagraph (iii) of the said paragraph (c) applies, that occurs during the first 12 months of the period of 15 months referred to in the said subparagraph (iii) —
(I) the current leave year, and
(II) the leave year immediately preceding the current leave year,
or
(iv) in relation to a cessation of employment of an employee to whom subparagraph (iii) of the said paragraph (c) applies that occurs during the final 3 months of the period of 15 months referred to in the said subparagraph (iii) —
(I) the current leave year, and
(II) the 2 leave years immediately preceding the current leave year.”.

The Complainant worked on average of 215.45 hours over an 8 week period. This averages at 26.93 per week.

The reference period from the 1^st December 2015 to the date of termination 19^th January 2016 is 7 weeks. I have calculated that this would have equated to 188.51 hours worked on the above calculation.

Using the holiday calculation of 8 % of the hours worked, I have calculated that this would equate to 15 hours holiday entitlement.

The Complainant was paid €11.00 per hour. This works out at a payment of €165.88. This is subject to tax in the normal way.

Dated: 9^th September 2016

Marguerite Buckley

Adjudicator