ADJUDICATION OFFICER DECISION
A General Assistant, Night Worker (The Complainant) -V- Retail (Respondent) Represented by IBEC
Adjudication Decision Reference: ADJ-00002078
1. 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-00002836-001
24/02/2016
Date of Adjudication Hearing: 07/07/2016
Workplace Relations Commission Adjudication Officer: Gerry Rooney
2. Procedure:
2.1. This claim refers to a General Assistant (the Complainant) a Polish National who alleged that:
2.1.1. contrary to section 19 of the Organisation of Working Time Act, 1997 that she did not receive her annual leave entitlements, and
2.1.2. that contrary to Section 21 of the Organisation of Working Time Act 1997 she has not been paid for her holiday entitlements for periods during 2015 and 2016.
2.2. In accordance with Section 41(4) of the Workplace Relations Act, 2015 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.
4. Complainant’s Submission and Presentation:
4.1. The Claimant submitted that she has been working with the Respondent since November 2005. She is employed full time as a General Assistant night worker and works on average 35 hour a week. Her Average hourly rate of pay is €16.24 per hour.
4.2. The Claimant advised that she had taken Parental Leave from 13th September 2015 to 17th January 2016 and had not been paid for the following weeks holiday entitlements and public holiday entitlements:
4.2.1. week 37 and 38 in 2015 dates from 31 August 2015 to 05 September 2015, and 06 September 2015 to 12 September 2015;
4.2.2. holiday entitlements drawn from 2015 but falling on 17 January 2016 to 30 January 2016;
4.2.3. public holidays owed from 2015 up to 06/02/2016.
4.3. The Complainant contented the amount owed to her was €2,388.
4.4. She maintained the holidays were due to her before she had taken parental leave, and due to sick leave.
4.5. The Complainant contended that she had written to her employer on two separate occasions (18th September 2015, and 27th November 2015 where she provided evidence of the correspondence) seeking her entitlements but her letters were ignored and this left her with no alternative but to bring her case to the Workplace Relations Commission for Adjudication
5. Respondent’s Submission and Presentation:
5.1. The Respondent advised that the complainant had received her public holiday entitlement, and had demonstrated this by producing payslips and records from the payroll.
5.2. The Respondent contended that the Complainant was seeking payment for a bank holiday on Good Friday which was not a public holiday.
5.3. The Respondent acknowledged that upon review of payslips and records that the employee was entitled to one-day public holiday leave which had not been paid. The Respondent contended that as the Complainant had not been working the pre-requisite 40 hours in the five weeks prior to the public holidays in October, Christmas and the New Year she did not have a public holiday entitlement for those days.
5.4. Having reviewed the records, the Respondent acknowledged that the Complainant was entitled to 10.75 days’ statutory annual leave and 3 days’ privilege leave which had not been granted to the Complainant. As such the Respondent acknowledged the Complainant was entitled to 13.75 days’ annual leave and was prepared to round this up to 14 days. The Respondent proposed that the paid leave be taken at the earliest opportunity.
5.5. The Respondent advised that the Complainant did not seek to have the matter resolved internally nor did she follow Company procedures in dealing with this matter.
6. Decision:
6.1. Section 41.4 of the Workplace Relations Act, 2015 requires that I make a decision in relation to the complaint in accordance with the revenant readdress provisions under Schedule 6 of that Act. Section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in relation to the complaint in accordance with the relevant readdress provisions under the act.
6.2. Having reviewed the matter, I find that the Complainant is entitled to 10.75 days’ statutory leave, and 1-day’s public entitlement and 3 days’ privilege leave.
6.3. I therefore decide, as proposed by the employer, that the Respondent is to provide the Complainant with 14 days paid leave and one day’s public holiday leave at its earliest convenience, and within the next six months at the latest.
6.4. It is noted the Complainant had written to the Respondent on two occasions seeking clarification of her entitlements and that such correspondence was not responded to. The Respondent contended that the Complainant had not sought to have the matter resolved locally, nor did she adhere to the company procedures. As the Complainant took her parental leave out of the country due to family circumstances she did write to the Respondent where there was no evidence provided by the Respondent to demonstrate it responded to the reasonable requests of the Complainant. I therefore do not find it a reasonable contention from the Respondent that the Complainant failed to attempt to address matters directly before progressing the claim to the Workplace Relations Commission.
6.5. I find it is an imperative on an employer to respond to such requests and clarifications from its employees in a timely manner, particularly as the employee had provided return addresses for the correspondence. Had this occurred the Respondent would have identified that the Complainant had annual leave entitlements and a public holiday entitlement as set out above, and as such would have avoided the necessity of the Complainant having to bring her case to the Workplace Relations Commission for a decision.
6.6. In light of the Respondent’s failure to respond in a timely manner to the reasonable requests from the Complainant for her entitlements, in accordance with Section 27(3) of the Organisation of Working Time Act I also decide that the Respondent is to pay to the employee compensation of a further two weeks’ wages amounting to €1,136.8 which I deem is just and equitable having regard to all of the circumstances. This compensation does not contain any element of remuneration and is therefore not subject to PAYE/PRSI.
Dated: 2nd September 2016