Complainant

Respondent

Anonymised Parties

A cleaner

A contract cleaning company

Representatives

Barry Powderly David Powderly Solicitors

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-00009721-001

15/02/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00009721-002

15/02/2017

The complainant started work with the respondent as a part-time cleaner on April 11^th 2014. She has been on maternity leave since March 22^nd 2017 and her statutory maternity leave ends on September 20^th.  

The respondent is a contract cleaning company and one of its contracts is the cleaning of holiday apartments in Dublin city. The complainant was assigned to this work and cleaned apartments in various locations on the basis of the client’s requirements. She worked different hours every week and she said that she worked an average of 30 hours per week.

The respondent did not attend the hearing.

This complaint was submitted to the WRC on February 15^th 2017. In accordance with Section 27(4) of the Organisation of Working Time Act, I can adjudicate on any contravention that occurred in the previous six months, from August 15^th 2016 until February 14^th 2017.

The complaint relates to non-payment of public holidays from April 2015 until January 2016. On behalf of the complainant, Mr Powderly argued that the public holidays for which the complainant was not paid fell within the leave year April 1^st 2015 to March 31^st 2016 and therefore, he argues that the contravention can be said to have occurred on March 31^st 2016. He said that discussions were ongoing between the complainant and her manager up to February 1^st 2016, and on this basis, he requested an extension of the time limit in accordance with Section 27(5) of the Act.   His argument can be summarised as follows:

The delay submitting the complaint was due to the fact that the complainant was in discussions with her manager with a view to resolving this matter and these discussions ended without a resolution on February 1^st 2016;

The public holidays which are the subject of this complaint fell within the leave year April 1^st 2015 to March 31^st 2016 and the date of contravention is therefore March 31^st 2016.

The respondent did not attend the hearing.

The extension of the time limit in respect of complaints about non-payment for public holidays was considered on appeal from the Labour Court to the High Court by Mr Justice Vivian Lavan in the case of Royal Liver Assurance Limited V Macken & others [2002] 4 I.R. 427. Judge Lavan agreed with the Labour Court’s finding that the employer in this case infringed the claimants’ entitlement to public holiday pay; however, he decided that the complaint was not submitted on time. He wrote:

“It is clear that public holidays are on a different footing to annual leave: public holidays receive entirely separate treatment to annual leave under the 1997 Act, and there is no basis on which to equate the date of contravention of the obligation to vindicate an employee’s entitlements in respect of public holidays with the date of contravention of the obligation to provide annual leave. The requisite infringement for the purpose of Section 21(1) would arise in contexts where the employer has failed to elect between the various entitlements of an employee under Section 21(1): or where an employer fails to comply with a request made by an employee under Section 21(2), where the employer fails to give a paid day off on the public holiday or an additional day’s pay, as the case may be. In each case, it seems the infringement would arise on the day of the public holiday itself.”

It is clear from this judgement that I must conclude that a contravention under Section 21 occurs on the day that the employee was not paid for the public holiday and does not extend to the limit of the leave year in which the contravention takes place.

The date of the most recent contravention to which this complaint relates is January 1^st 2016. As the complaint was submitted on February 15^th 2017, in accordance with Section 27(4) and (5) of the Organisation of Working Time Act 1997 I have no authority to adjudicate on the matter and the complaint fails.

Around the end of December 2016, the complainant said that she informed her manager that she was pregnant. Her baby was due on April 26^th 2017. She went on holidays on January 6^th and on January 20^th, just before she came back from holidays, she told her manager that she didn’t want to continue cleaning the holiday apartments as she found the work too strenuous. She said that he suggested that he would assign her to office cleaning instead.   She also informed him that she intended to start her maternity leave at the end of February, even though this was eight weeks in advance of her due date. At the hearing, she confirmed that she actually commenced maternity leave on March 22^nd, which is the date she started to collect Maternity Benefit from the Department of Social Protection.

The complainant returned from holidays on January 25^th. At the hearing, she presented a copy of a text message that she sent to her manager on Friday, January 27^th in which she said, “Hi (name.) I hope I will start to work on Monday (February 1^st).” Her manager replied, “I’ll let you know OK. Thanks.”

She said that she claimed illness benefit from February 1^st. She said that she was not sick, but that she made the claim because she needed the money.

On February 5^th, she sent her manager an e mail letting him know that she applied for illness benefit on February 1^st, but that it was her understanding that she could still work and she requested “any available job.”

Some days later, it appears that she received a text message saying that work was available in the apartments, but she replied saying “No thanks, I already have one appointment tomorrow.” On February 15^th, the complainant wrote to her supervisor complaining that she had not been given any work and she informed him that she was making a complaint to the WRC. On February 21^st, she said that her supervisor called to say that he had work for her but she said that she was “going on a trip.” She returned at the end of February but did not contact the company before she started her maternity leave on March 22^nd.

At the hearing, I asked the complainant if she had informed her employer, in accordance with Section 22 of the Maternity Leave Act 1981 that she intended to return to work at the end of her maternity leave. She said that she had not done so.  

The respondent did not attend the hearing.

The complainant commenced her maternity leave on March 22^nd 2017 and her statutory leave ended 26 weeks later on September 20^th. This hearing took place on September 4^th.

From the information presented at the hearing, there is no evidence that the complainant has been dismissed. Her description of events indicates that the scheduling of work was disorganised and the request for a reduced workload due to pregnancy was not well-managed. However the respondent did not attend to rebut this allegation. As the complainant was on maternity leave on the date of the hearing, it is incumbent on her to inform her employer of her intention to return and the date on which she intends to return.

I have concluded that the complainant was not dismissed and remains an employee of the respondent while she is on maternity leave. I therefore cannot make a finding in respect of her claim under the Employment Equality Acts and her complaint fails.

Public holidays, extension of time limits