ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003387

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

Date of Adjudication Hearing: 01/11/2016

Workplace Relations Commission Adjudication Officer: Joe Donnelly

Procedure:

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

Complainant’s Submission and Presentation:

Respondent’s Submission and Presentation:

There was no appearance by the respondent. There was, however, a written submission from one of the partners of the respondent business (who himself is resident in the U.S.A.) stating that, according to their accountant’s advice, they had paid the complainant all monies due to her and that it was therefore considered that the matter was closed. A copy of the accountant’s calculations was attached.

Decision:

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

Issues for Decision:

Did the complainant receive the correct payment in respect of Public Holidays?

Legislation involved and requirements of legislation:

Section 21(1) of the Organisation of Working Time Act, 1997, states:

Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely –

1. a paid day off on that day,

2. a paid day off within a month of that day,

3. an additional day of annual leave,

4. an additional day’s pay:

The calculation of a day’s pay is set out in Regulations contained in S. I. 475 of 1997.

Section 41(6) of the Workplace Relations Act 2015 states:

Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

Decision:

The complainant was employed as a barperson in a licensed premises owned by the respondent. She commenced employment in September 2014 and was paid €10.00 per hour. Her employment terminated on 18 April 2016 having received two weeks notice. The complainant worked fluctuating hours and days.

This complaint relates to the payment for Public Holidays. The complainant said in evidence that she had not received payment for Annual Leave or for Public Holidays whilst in employment. Subsequent to the notice of the termination of her employment she had emailed the respondent in this regard. The complainant then received cheques some weeks later totalling €1,221.42 in respect of these matters. According to her calculations she was still due about €582.00 in relation to underpayment of Public Holiday entitlement for the period of her employment.

As noted the respondent did not attend the hearing but submitted a written response with documentation to the effect that the money paid was correct according to their accountants. The accountants did not attend the hearing to verify their calculations. These calculations do not appear to include any Public Holidays after January 2016.

The complaint form was received by the WRC on 1 June 2016. The complaint relates to Public Holiday entitlements only. Having regard to Section 41(6) of the Workplace Relations Act 2015 the only issues which can be considered are those relating to the Public Holidays which occur in the six months preceding the receipt of the complaint. These number five – i.e. 25/26 December 2015, 1 January, 17 March and Easter Monday. It is clear, however, that no payment for Public Holidays was made by the respondent during the course of the complainant’s employment and that the payments were received after the complainant’s employment ended. I believe that compensation is the appropriate form of redress in this case and that the award should also take note of the infringement of the complainant’s rights and therefore not only compensate for economic loss sustained but must provide a real deterrent against future infractions. I therefore find that this complaint is well founded and require the respondent to pay the complainant the sum of €400.00 as compensation.  

Dated:   21/03/2017