ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00003346

Parties:

Complaint(s):

Date of Adjudication Hearing: 17/08/2017

Workplace Relations Commission Adjudication Officer: Roger McGrath

Procedure:

In accordance with Section 41 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 complaint.

Background

The Complainant was employed in a restaurant from the 23^rd of March 2013 until the 27^th of April 2016. She worked approximately 45 hours per week and was paid €9.50 from her start date until March 2016 when her rate increased to €10.00 per hour. Her complaint was received by the WRC on 3^rd May 2016.

The Respondent did not attend the hearing.

1) CA- 00004207-001 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1977.

Complainant’s Submission and Presentation:

Compensation for working on a Sunday.

The Complainant stated that she had not received any compensation for working on Sundays, which she worked from November 2015 to April 2016. She submitted that she had worked a total of 78 hours on Sundays during this period, for which she earned €780. The Complainant submitted documentary evidence in the form of her payslips and rosters to support her claim.

Respondent’s Submission and Presentation:

The Respondent had not made a submission nor were they in attendance at the hearing.

Findings

Sec 14 (1) (b) of the Organisation of Working Time 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”.

On the uncontested evidence of the Complainant I find that the Respondent has breached Section 14 of this Act.

Decision:

I have decided that the Complainant was not compensated for working Sundays.

I have decided that a premium of time and one third would be reasonable for this industry.

The Respondent is to pay the Complainant a sum of €260 (i.e. €780/3) in compensation for the economic loss.

2) CA- 00004207-002 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1977.

Complainant’s Submission and Presentation:

Entitlement in respect of holiday pay

The Complainant stated that she did not receive holiday payment for the period from August 2015 to April 2016. The total amount of outstanding holiday pay is €1,085.37.

Respondent’s Submission and Presentation:

The Respondent had not made a submission nor were they in attendance at the hearing.

Findings

Section 19 of the Act States

9. — (1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “ annual leave”) equal to—

( a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

Section 20 of the Acts states

(2) The pay in respect of an employee’s annual leave shall—

( a) be paid to the employee in advance of his or her taking the leave,

( b) be at the normal weekly rate or, as the case may be, at a rate which is proportionate to the normal weekly rate, and

( c) in a case in which board or lodging or, as the case may be, both board and lodging constitute part of the employee’s remuneration, include compensation, calculated at the prescribed rate, for any such board or lodging as will not be received by the employee whilst on annual leave.

On the uncontested evidence of the Complainant I find that the Respondent has breached Section 20 of this Act.

Decision:

I require the Respondent to pay the Complainant €1,085.37 for the economic loss due to the breach of her rights under the Organisation of Working Time Act, 1977.

3) CA- 00004207-003 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997.

Complainant’s Submission and Presentation:

Public Holiday entitlements

The Complainant stated that that she was never paid for Public Holidays. The total amount unpaid was €859.20

Respondent’s Submission and Presentation:

The Respondent had not made a submission nor were they in attendance at the hearing.

Findings

Section 21 of the Act states

Entitlement in respect of public holidays.

1. — (1) 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—

( a) a paid day off on that day,

( b) a paid day off within a month of that day,

( c) an additional day of annual leave,

( d) an additional day’s pay:

On the uncontested evidence of the Complainant I find that the Respondent has breached Section 21 of this Act.

Decision:

I require the Respondent to pay the Complainant €859.20 for the economic loss due to the breach of her rights under the Organisation of Working Time Act, 1977.

Dated:   16.11.17

Workplace Relations Commission Adjudication Officer: Roger McGrath

Key Words: