ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002353

Complaints for Resolution:

Venue: WRC; Lansdowne House, Dublin 4.

Date of Adjudication Hearing: 06/12/2016

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

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

Background

The Complainant was employed as a Sales Person from 19^th October 2015 to 23^rd January 2016. He was paid €1,834.21 per month. He has claimed that he was not properly paid for two Sundays worked and did not get holidays or holiday pay.

Complainant’s Submission and Presentation:

He stated that he worked December 13^th and 20^th 11.00am to 6.00pm, less 45 minutes break on one Sunday only. He was given two paid days off in lieu of working Sundays. He believed that he should have got time and one half off and so should have got three days instead of two off. He has claimed €92.00.

2) Holidays

He received no holidays or holiday pay. He worked 16 weeks and has claimed 20/52*16 = 6 days holidays amounting to €522.00.

Respondent’s Submission and Presentation:

The Respondent did not attend and was not represented at the hearing.

Findings

1) Sunday working

I note that the Complainant advised the hearing that he did not get a written contract of employment.

I note that he did not have a contractual entitlement to time and one half.

I note that he was not aware of that as a practice in this employment. He advised that in his current employment that is the practice.

I note that he was offered days off in lieu and he accepted this.

I note that this is a common practice in the services industry.

I note that his normal working day is 9.30am to 6.00pm. On Sundays he worked 11.00am to 6.00pm and he got a full day’s pay for the days in lieu.

Sec 14 (1) (b) of this Act states, “an employee who is required to work on a Sunday .. shall be compensated by otherwise increasing the employees rate of pay by such an amount as is reasonable having regard to all the circumstances b) by increasing the employees’ rate of pay by such an amount that is reasonable, c) by granting an employee such paid time off as is reasonable, d) or by a combination of two or more of the mean referred to in the preceding paragraph”.

I find that the giving of two days in lieu at full rate is reasonable compensation.

I find that this part of the claim fails.

2) Holidays

I note that no holidays were given during the employment or at the cessation of this employment.

Sec 19 of this Act grants an entitlement to holidays

1. employee shall be entitled to paid annual leave of 8 % of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Sec 19(1) a) “4 weeks in a leave year in which he or she works at least 1365 hours

Sec 23 (a) states, “Where an employee ceases to be employed…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”.

I find that it is understandable in a short employment that holidays may not be given however upon cessation any holiday entitlement accrued at that point must be paid in accordance with Sec 23.

I find that the Respondent has breached Sec 23 of this Act.

I find that he worked 14 weeks not 16 as claimed, which gives him an entitlement to 5 days which amounts to €423.28.

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.

I have decided that the complaint for breach of Sec 14 in respect of Sunday working has failed.

I have decided that the Respondent has breached Sec 23 of this Act.

I have decided that the Respondent should pay €423.28 in respect of the economic loss.

In addition I have decided that the Respondent should pay the Complainant €200 in compensation for breach of his rights under this Act. This is intended to act as a deterrent against future infractions.

I order that these monies are paid within six weeks of the date below.

Eugene Hanly

Adjudication Officer

Dated:   8^th March 2017