ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002940

Complaints for Resolution:

Date of Adjudication Hearing: 6th January 2017

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On the 18^th February 2016, the complainant referred complaints pursuant to the Payment of Wages Act and the Organisation of Working Time Act to the Workplace Relations Commission. The complaints were scheduled for adjudication on the 6^th January 2017. The complainant is a medical secretary and the respondent is a consultant surgeon.

At the scheduled time the adjudication was to commence, it became apparent that there was no appearance by or on behalf of the respondent. I verified that the respondent was on notice of the time, date and venue of the adjudication and waited some time to accommodate his late arrival. Having been satisfied as to service, I proceeded with the adjudication in the absence of the respondent.

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.

Complainant’s Submission and Presentation:

The complainant outlined that she commenced working for the respondent in early 2009. Her initial role was limited to a couple of hours per day where she was responsible for filing. Her role expanded when the then medical secretary left the practice. In late 2009, the complainant’s hours expanded to full-time hours where she would commence her working day at 7 or 8am and finish at 3 or 4pm. She was responsible for the administrative functions in the office, for example scheduling appointments, following up on invoices and processing test results and medical reports for legal proceedings.

The complainant had been initially employed by a limited company and signed a contract of employment with this entity. At the time she became full-time, she signed a new contract of employment with the respondent personally. He was her employer. The complainant said that she was expected to work long days without any opportunity for rest breaks. She would get 10 minutes per day and for the rest of the time, she, effectively, had to do the work of three people in the office. Once a month, she had to drive the respondent, at her own expense, to a clinic in the midlands. This would be a long day. She also found the workplace very stressful as the respondent would become very aggressive and abusive. This culminated in the complainant falling ill at work in December 2014 and receiving medical attention. The complainant said that she returned to work but fell sick again in July 2015. She had been on sick leave since this date and continued to submit sick certificates to the respondent.

In respect of pay, the complainant outlined that she had not received payment for six months between December 2014 and July 2015 at a time when she worked. Her net wage was €800 per week and she did not know the gross amount. She had also been underpaid for previous months where she received between €350 to €500 in net pay instead of the €800 due to her. The complainant outlined that it had been the practice for consultants in the practice to pay sick leave, but she did not have her current contract of employment to establish whether she was entitled to such remuneration.

In respect of annual leave, the complainant outlined that at the start of the employment relationship with the respondent, she had booked with his agreement one week’s annual leave. Just before she was to avail of this annual leave, the respondent instructed that she not take the leave and that she work instead. He said that she would be able to take all the accrued leave at some later point and that she should continue working. He raised the possibility of retiring or closing the practice at some point. The complainant said that she repeatedly raised with the respondent this undertaking but she was never able to take leave. The complainant submitted that she remained an employee of the respondent and continued to accrue sick leave.

In closing comments, the complainant said that she had worked hard for the respondent in managing his office and practice. She had expected that the matter would be resolved without taking the step of a formal complaint. She had never been able to avail of annual leave during the course of her employment with the respondent. She had not been compensated for expenses incurred in monthly trips to a clinic in the midlands. She had not been paid wages and was also underpaid for a period. The respondent had been aggressive and abusive to her. Despite this, she had performed well in the role, including clearing a substantial overdraft the respondent had incurred. She had achieved this by following up on outstanding invoices and monies due to the respondent. She had never received a reference to assist her in finding alternative work.

Addressing the issue of the timing of the complaint, the complainant outlined that she was unable to pursue these complaints because of her ill-health. From July 2015, she was on certified sick leave and seeking to cope with her illness. The complainant said the her health condition stemmed from her workplace, in particular her lack of annual leave and rest breaks as well as her treatment at the hands of the respondent.

Respondent’s Submission and Presentation:

The respondent did not make submissions and nor did he attend the adjudication.

Findings and reasoning:

The complainant is a medical secretary and commenced her employment with the respondent in 2009. She managed the respondent’s clinical practice and his practice as a medical expert witness in legal proceedings. She outlines that she was able to greatly improve the respondent’s financial position. She went on sick leave in July 2015 and continues to submit sick certificates. Her employment has not come to an end. She has not resigned and nor has she been dismissed by the respondent.

The complainant makes two claims. The first claim is made pursuant to the Payment of Wages Act. The date of the complaint was the 18^th February 2016. She claims for each week of wages at €800 net (she was not able to provide the relevant gross amounts) for which she was not paid. The contract of employment provided at the hearing by the complainant exhibits her salary in net amounts and it seems that the respondent had contracted net payments to the complainant. The complainant gave evidence that she had verified with Revenue and the Department of Social Protection that the relevant tax and PRSI deductions had been made. She had ensured that this was done as she was concerned for her future pension entitlements.

The Workplace Relations Act provides that a claim must be lodged within six months of the date of contravention and that this is extendable to 12 months with reasonable cause. I find that the complainant has established reasonable cause to extend her claim for 12 months prior to the date of application, i.e. to the 12^th February 2015. I make this finding because of the uncontroverted evidence of the complainant that her poor health and the workplace prevented her from lodging the claim.

I find that the complainant has not been able to show a contractual entitlement for sick pay to cover part or all of her pay from July 2015 onwards. Her preceding contract (presented at the hearing) says that sick pay is paid at the discretion of the employer. While the complainant said that it was the practice in the clinic for sick pay to be paid, I do not have sufficient evidence to find that this entitlement existed in her employment relationship with the respondent. I, however, find that the complainant is entitled to recover for the period of the 12^th February 2015 to the 1^st July 2015 (a period of 19 weeks). At €800 net per week, I find that the complainant is entitled to recover €15,200 net.

In respect of the limitation period for claims relating to annual leave, the Labour Court in Singh & Singh Ltd v Guatam and others (DWT0544) held as follows:

“In determining the relevant dates on which the alleged contraventions of the Act occurred the Court has had regard to the judgment delivered by Mr Justice Lavan in Royal Liver v Macken and Others High Court Unreported November 2002. From this Judgment it is clear that where an employer fails to provide an employee with the requisite amount of paid annual leave the contravention of the Act occurs at the end of the leave year to which the leave relates. Section 2 of the Act provides that a leave year commences on 1st April and ends on the 31st March next following. Where employment cesses during a leave year an employer is required to pay the employee cessor pay in compensation for any outstanding annual leave. Failure to do so constitutes a contravention of the Act which occurs on the date on which the employment terminates.”

In respect of this claim, the complainant gave uncontroverted evidence that she was not afforded annual leave at any point. This claim was referred to the Workplace Relations Commission on the 12^th February 2016. The 2014/15 leave year came to an on the 31^st March 2015 and this is the date of contravention. I note the complainant’s evidence of the complainant that her poor health arising from the workplace prevented her from lodging the claim. I find that the complainant has, in these circumstances, shown reasonable cause. She is entitled to recover for untaken annual leave in the 2014/15 leave year.

The 2015/16 leave year came to an end on the 31^st March 2016 and the complainant’s evidence at the adjudication was that she was not able to available of annual leave during the leave year. I also make an award for this loss.

As the complainant remains an employee of the respondent, she continues to accrue her entitlement to annual leave (by operation of section 19(1A) of the Organisation of Working Time Act). This adjudication took place on the 6^th January 2017, i.e. within the currency of the 2016/17 leave year. There can only be a contravention in relation to the current leave year if the complainant’s employment with the respondent ends or on the 31^st March 2017, when the leave year expires. I, therefore, make no findings in relation to the 2016/17 leave year.

The Organisation of Work Time Act transposes Directive 93/104/EC and its Long Title states that the Act makes provision in relation to the working conditions of employees and the protection of the health and safety of employees. Section 27 of the Act provides for redress that is just and equitable in the circumstances, but not exceeding two year’s remuneration. In Connaughton & Sons Landscaping Ltd v Stolarczyk (DWT12107), the Labour Court held “A significant award of compensation over and above the economic value of an entitlement under the Act is only appropriate where there has been a deliberate and conscious breach of a worker’s rights.” The complainant gave unconverted evidence of sustained and egregious breaches of the Organisation of Working Time Act in the limitation period allowed above. In these circumstances, I find that it is just and equitable to award to the complainant redress in the amount of €8,000. This award is not in respect of remuneration or of arrears in remuneration.

The complainant alluded to not receiving rest breaks. I make no finding or award in this regard as this issue was not disclosed in the complaint form.

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.

CA-00002698-001

In respect of the complaint pursuant to the Payment of Wages Act, I find that the complaint is well founded and the respondent shall pay to the complainant arrears in remuneration of €15,200 net.

CA-00002698-002

In respect of the complaint pursuant to the Organisation of Working Time Act, I find that the complaint made regarding annual leave is well founded and the respondent shall pay to the complainant redress of €8,000 for breaches of the complainant’s statutory rights and this does not amount to remuneration.

Dated:   25^th April 2017