ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00009798
Parties:
| Complainant | Respondent |
Anonymised Parties | A Beautician | A Beauticians |
Complaint(s):
| Act | Complaint 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-00012835-001 | 28/07/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00012835-002 | 28/07/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00012835-003 | 28/07/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00012835-004 | 28/07/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998 | CA-00012835-005 | 28/07/2017 |
Date of Adjudication Hearing: 04/10/2017
Workplace Relations Commission Adjudication Officer: James Kelly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and 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. The Director General also referred associated complaints from the complainant against the same respondent under a different alias. However, once the respondent was correctly identified the complainant withdrew those other complaints. The complaints reference numbers withdrawn are as follows -ADJ00008460 - CA-00011108-001, and ADJ0009797 – CA00012837-001, -002, -003, -004 and -005.
Background:
The complainant was employed with the respondent and alleged that the respondent was in breach of the Organisation of Working Time Act, 1997 at Section 12 – Breaks; Section 19 - Entitlements to Annual Leave; Section 21 - Entitlements in respect of Public Holidays and Section 23 - Compensation on cessation of employment. She also claims that the respondent failed to provide her with written terms and conditions of her employment under the Terms of Employment Act, 1994. The complainant claims that she was refused force majeure leave in accordance with the Parental Leave Acts, 1998. The respondent is a sole trader and refutes the claims made against it. It claims that the complainant was always treated well during her time working in the Salon and she received all her entitlements. |
Summary of Complainant’s Case:
The complainant commenced employment at the respondent’s Salon on 26 July 2016 and claims that she worked 45 hours per week and was paid €380 gross per week. Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00012835-001 The complainant claims that she did not receive proper breaks for the duration of her employment. She claims that her breaks were not scheduled, they were ad-hoc, much of the time she would not get any breaks at all, particularly if the Salon was busy. She claims that when she did get a break, it was usually only for 10 or 15 minutes and these breaks were usually in the Salon sitting at the desk tending to the telephone where she could get a cup of tea. The complainant claims that it is well established in case law that rest provisions are a matter of health and safety and that the employer has a positive obligation to ensure that the employee actually receives adequate breaks. The complainant raised the following authorities in support of her case, Labour Court decision DWT047 The Tribunal Printing & Publishing Group and GPMU where the court held “the company is under duty to ensure that the employee receives his equivalent rest periods and breaks. Merely stating that the employee could take rest breaks if they wished and not putting in place proper procedures to ensure that the employee receives those breaks, thus protecting his health and safety, does not discharge that duty”. The complainant also referred to the Labour Court Determination No DWT1117 in which when referring to ECJ case C-484/04 Commission v. UK (2006) IRLR888 the court said “… that it is for the employer to actively see to it that an atmosphere is created in which the minimum rest period prescribed by Community law are effectively observed. This she points out, requires that within the employment appropriate rest period are actually scheduled.” Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00012835-002 The complainant claims that she worked 45 hours per week and was paid €380. She commenced employment on 26 July 2016 and worked for 5 months giving her an entitlement of 1.67 days’ annual leave per month, 8.35 days in total, which has a monetary value of €634.60. The complainant claims that she was told by the respondent that she was on trial until December 2016 so therefore she accrued no annual leave and for December she was only entitled to 1 and a 1/4 day. She claims that in 2017 she was told by her employer that she was entitled to 3 and 3/4 days for January, February and March. The complainant claims that she was given 2 days’ annual leave in January and in March 2017. The complainant claims that she worked for 3 months in 2017 giving her an entitlement to 5 days’ annual leave. She said when this is added to her entitlement for the 5 months in 2016 she had accrued 13.35 days and she was only paid for 3 days leaving an outstanding balance of 10.35 days that should be given to her or paid in compensation on cessation of her employment as provided for under Section 23 of the Act. Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00012835-003 The complainant claims that during her employment there were 6 public holidays - 4 in 2016 and 2 in 2017. The complainant said that she did not work on Mondays and she did not receive a paid day’s leave on that day or a paid day’s leave within a month or an additional annual leave or an additional day’s pay. The complainant claims that the respondent paid nothing for public holidays. Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 - CA-00012835-004 The complainant claims that she never received a written contract of employment specifying the terms and conditions of her employment. The complainant disputes that the “contract” letter presented by the respondent on the day of the hearing was ever presented to her heretofore. Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998 - CA-00012835-005 The complainant said that she is a single parent and her young daughter was referred to hospital by her GP due to severe pain on Tuesday 28 March 2017. The complainant claims that her daughter was diagnosed with a kidney infection and prescribed medication and the complainant was advised to keep her child at home for a few days to monitor her. The complainant claims that she sent a letter to the respondent on 29 March requesting three force majeure days’ leave. She claims that the respondent said she never heard of such leave and would not pay her accordingly. The complainant claims that her application for force majeure leave was in line with the conditions set out under Section 13(1) of the Act, namely,
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Summary of Respondent’s Case:
The respondent claims that she has been 29 years in business and has a very good reputation. She said that she always treats people with respect and has been involved in training many of the beauticians in the area and is disappointed that the complainant has taken this case as she had looked after her while working with the respondent. The respondent maintains that the complainant commenced employment at the respondent’s Salon on 26 July 2016 and claims that she worked 40.5 hours per week and was paid €380 gross per week. Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00012835-001 The respondent claims that the complainant did get her breaks and she presented witnesses at the hearing who had worked with the complainant at the respondent’s Salon. It was their evidence that they had been working with the respondent for a combined 17 years and everyone gets breaks during the day. It was also their evidence that they saw the complainant take her breaks and she would often take them in a fast food establishment next door. The respondent claims that she does not keep records of her employees breaks but presented the Salon’s appointment book to highlight where the complainant was not scheduled for work on the day and accordingly, claimed that she would have a break at those times. The respondent said that everyone get breaks especially when it’s not busy but that is the nature of the business. Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00012835-002 In relation to annual leave the respondent maintains that the complainant was originally on a 12-week trial and, as she was not qualified in certain beautician treatments, she would undergo 6 months training. The respondent claims that the complainant got 7 days’ annual leave during her time working there. The respondent presented a list of dates when the complainant was on annual leave. Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00012835-003 The complainant claims that she worked the August back holiday in 2016 on account of appointments booked in and the complainant was made aware of this on her first day. The respondent claims that the complainant was given that bank holiday back on 4 January 2017. Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 - CA-00012835-004 The respondent presented a copy of an unsigned and undated “contract” letter that she claims was drafted for the complainant following her interview in July 2016. This letter sets out the terms and conditions of employment. Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998 - CA-00012835-005 The respondent claims that the complainant’s last day of work was Saturday 25 March 2017. The respondent said that the complainant was in contact to say her daughter was sick and the respondent told her not to come in. There was an exchange of texts and on Wednesday 29 March the respondent claims that the complainant said she would be out for the full week. The respondent claims that on 4 April the complainant said that she had to leave and thanked the respondent for her time there. The respondent claims that any money owned and her P45 would issue. The respondent claims that the complainant had opened an account to avail of a staff discount for products/treatments at the Salon and there was €426.85 outstanding to be paid and that amount was deducted from the final wages owed to the complainant to balance that out. The respondent claims that she was approached by the complainant and handed a letter with the medical certificate looking for three days force majeure leave. The respondent said that she genuinely was not familiar with force majeure leave and said she would have to check it out with her accountant. The respondent claims that she never refused to pay it as suggested by the complainant. |
Findings and Conclusions:
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00012835-001 The Law Rests and intervals at work.
(2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1). (3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour). (4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2). Section 25 of the 1997 Act, as amended, states that: - (1) An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this Act are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making. […] (4) Without prejudice to subsection (3), where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act [Act or the Activities of Doctors in Training Regulations] in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer. The Labour Court in the case of Nurendale Ltd T/A Panda Waste and Andrei Suvac, DWT1419, stated that: - “In reliance on the terms of this contract the Respondent submitted that the Claimant was obliged to take breaks and that if he failed to do so this was through his own choosing. The Court cannot accept that submission. In Antanas v Nolan Transport [2011] 22 ELR 311, having considered the decision of the CJEU in Case C-484/04, Commission v United Kingdom IRLR 888, this Court held that Directive 2003/88/EC, from which the Act of 1997 is derived, places a positive obligation on an employer to ensure that the breaks are actually taken and it is insufficient to merely provide that breaks can be taken. In this case, no evidence was tendered to the Court to show that the Respondent took any measures to ensure that the Claimant actually took the breaks to which he was entitled. It is also noteworthy that this contract appeared to place an obligation on the Claimant to maintain records of his working time and breaks. Section 25 of the Act places that obligation on an employer. It cannot be transferred by contract or otherwise to an employee so as to relieve the employer from its statutory duty to comply with that section”. Conclusions There is contested evidence from the parties on this element of the complaint. What is clear is the respondent has not kept sufficient records to support her case and refute the complainant’s allegations. The copies of the business bookings do not reach the necessary standard of such record keeping required by section 25 (1) and although the respondent presented witnesses to support that breaks were taken, and that they themselves get breaks, the complainant has established a prima facie case that she did not receive “proper” breaks, that they were ad hoc at best and this is supported by the respondents own evidence to suggest that they “took breaks when it was not busy” and “that is the nature of the business”. Accordingly, I am satisfied that the complainant’s claim that the respondent was in breach of Section 12 of the 1997 Act to be well founded, as I find that the records maintained by the respondent were not in compliance with its obligations under the 1997 Act and no evidence was presented to show that the respondent had in place a process to ensure that the complainant actually received her entitlement to rest breaks. Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00012835-002 The Law Entitlement to annual leave.
(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), (b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or (c) 8 per cent. of the hours, he or she works in a leave year (but subject to a maximum of 4 working weeks): Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater. (1A) For the purposes of this section, a day that an employee was absent from work due to illness shall, if the employee provided to his or her employer a certificate of a registered medical practitioner in respect of that illness, be deemed to be a day on which the employee was — (a) at his or her place of work or at his or her employer’s disposal, and (b) carrying on or performing the activities or duties of his or her work. (2) A day which would be regarded as a day of annual leave shall, if the employee concerned is ill on that day and furnishes to his or her employer a certificate of a registered medical practitioner in respect of his or her illness, not be regarded, for the purposes of this Act, as a day of annual leave. (3) The annual leave of an employee who works 8 or more months in a leave year shall, subject to the provisions of any employment regulation order, registered employment agreement, collective agreement or any agreement between the employee and his or her employer, include an unbroken period of 2 weeks. (4) Notwithstanding subsection (2) or any other provision of this Act but without prejudice to the employee’s entitlements under subsection (1), the reference in subsection (3) to an unbroken period of 2 weeks includes a reference to such a period that includes one or more public holidays or days on which the employee concerned is ill. (5) An employee shall, for the purposes of subsection (1), be regarded as having worked on a day of annual leave the hours he or she would have worked on that day had it not been a day of annual leave. (6) References in this section to a working week shall be construed as references to the number of days that the employee concerned usually works in a week. Conclusions The complainant originally claims that she worked for 3 months in 2017 giving her an entitlement to 5 days’ annual leave. She said when this is added to her entitlement for the 5 months she worked in 2016 where she had accrued 13.35 days’ annual leave and she only took 3 days leaving her with an outstanding balance of 10.35 days. She claims that these should be given to her or paid in compensation on cessation of her employment as provided for under Section 23 of the Act. The respondent presented a list of dates where it claims that the complainant was on holidays and notes as aide memoire which was very helpful on the day of the hearing. Accordingly, after careful consideration of the evidence adduced, I am satisfied that the complainant was entitled to 13.35 days’ annual leave for the relevant period and she was allowed to take 5 days in annual leave resulting in a 8.35 days outstanding balance owing and that is €634.60 in monetary value. As the complainant’s employment, did not come to an end until 4 April 2017, and as she had accrued annual leave entitlements up to this time, I find this complaint is made within the time limits stipulated in accordance with Section 41 of the Workplace Relations Act, 2015. The Organisation of Working Time (Records) (Prescribed Form and Exemptions) Regulations 2001 requires all employers to keep detailed records of start and finishing times, hours worked each day and each week and leave granted to employees. This Regulation is part of the Organisation of Working Time Act 1997. The employer must keep these records for 3 years. The respondent has failed to provide a record of the actual leave provided to the complainant, and in accordance with Section 25 of the Organisation of Working Time Act, and the 2001 Regulations, the respondent is obliged to maintain such records for a period of three years. Furthermore Section 25 (4) of the Act states the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer. Based on the evidence provided, and the absence of records other than the disputed records compiled for the basis of pay, I find that on the balance of probability the complainant did not receive her correct holiday entitlements. Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00012835-003 The Law Entitlement in respect of public holidays.
(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: Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom. (2) An employee may, not later than 21 days before the public holiday concerned, request his or her employer to make, as respects the employee, a determination under subsection (1) in relation to a particular public holiday and notify the employee of that determination at least 14 days before that holiday. (3) If an employer fails to comply with a request under subsection (2), he or she shall be deemed to have determined that the entitlement of the employee concerned under subsection (1) shall be to a paid day off on the public holiday concerned or, in a case to which the proviso to subsection (1) applies, to an additional day’s pay. (4) Subsection (1) shall not apply, as respects a particular public holiday, to an employee (not being an employee who is a whole-time employee) unless he or she has worked for the employer concerned at least 40 hours during the period of 5 weeks ending on the day before that public holiday. (5) Subsection (1) shall not apply, as respects a particular public holiday, to an employee who is, other than on the commencement of this section, absent from work immediately before that public holiday in any of the cases specified in the Third Schedule. (6) For the avoidance of doubt, the reference in the proviso to subsection (1) to a day on which the employee is entitled to a paid day off includes a reference to any day on which he or she is not required to work, the pay to which he or she is entitled in respect of a week or other period being regarded, for this purpose, as receivable by him or her in respect of the day or days in that period on which he or she is not required to work as well as the day or days in that period on which he or she is required to work. Conclusions The complainant said that she did not work on Mondays and she did not receive a paid day’s leave on that day or a paid day’s leave within a month or an additional annual leave or an additional day’s pay for the public holidays. The complainant claims that during her employment there were 6 public holidays that she is entitled to receive payment for. The complainant claims that the respondent paid nothing for public holidays and I am satisfied with the complainant’s evidence accordingly. Section 41(1) and 41(6) of the Workplace Relations Act 2015 determine how a complainant presents a complaint to the Workplace Relations Commission and the time limit in which to do so. Section 41(8) allow for an extension of the time limits due to reasonable cause.
[…] (6) 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. […] 8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause. I note the decision of Mr. Justice Vivian Lavan in the Royal Liver Assurance Limited v Graham Macken, Michael Wall, Anthony Kelly, John Maher, John Cotter, Gerard Quinn, Aidan Cassidy and Siptu Case - Record No: 2001/490Sp High Court - 5 November 2002 unreported, in relation to the calculation of time limits when action can be brought for contravention of Section 21 of the Organisation of Working Time Act, 1997. The Labour Court had previously found that Annual leave (Section 19) and Public Holiday leave (Section 21) should be treated similarly. However, the High Court held, “In summary, Section 21 provides that, in respect of a public holiday, an employee shall be entitled to either a paid day off; a paid day off within one month of the public holiday; an additional day of annual leave; or an additional day's pay. Section 21(2) provides that an employee may request his employer to make a determination in relation to an employee's entitlements in respect of a particular public holiday not later than 21 days before the public holiday concerned, and the employer must revert to the employee with his decision at least 14 days prior to the holiday itself, and where Section 21(3) provides that if an employer fails to comply with a request under Section 21(2) made by an employee, the employee will be deemed to be entitled to a paid day off on the public holiday concerned. Sections 21(4) and 21(5) makes provision for part-time employees and employees absent from work immediately before the public holiday in question in any of the cases specified in the Third Schedule. 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 purposes 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 date of the public holiday itself.”
Accordingly, I am satisfied that I have jurisdiction to consider contraventions that have occurred 6 months from the date of receipt of this complaint, and that is 6 months from the 28 July 2017. Also, I have not received an application to extend that time limit beyond the 6-month period and accordingly, I see no reasonable cause to extend that time beyond the 6-month period set out under Section 41(6) of the Workplace Relations Act 2015. I note that the complainant finished work on the 4 April 2017. Therefore, there was one Public Holiday in that period. I accept that the appropriate calculation to determine the entitlements is - 1 day multiplied by one-fifth of the average weekly pay, which amounts to €76. As mentioned above the Organisation of Working Time (Records) (Prescribed Form and Exemptions) Regulations 2001 requires all employers to keep detailed records of start and finishing times, hours worked each day and each week and leave granted to employees. This Regulation is part of the Organisation of Working Time Act 1997. The employer must keep these records for 3 years. The respondent has failed to provide a record of the actual leave provided to the complainant, and in accordance with Section 25 of the Organisation of Working Time Act, and the 2001 Regulations, the respondent is obliged to maintain such records for a period of three years. Furthermore Section 25 (4) of the Act states the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer. Based on the evidence provided, and the absence of records other than the disputed records compiled for the basis of pay, I find that on the balance of probability the complainant did not receive her correct Public Holiday entitlements. Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 - CA-00012835-004 The Law Section 3 of the Terms of Employment (Information) Act 1994 states
(a) the full names of the employer and the employee, (b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963), (c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places, (d) the title of the job or nature of the work for which the employee is employed, (e) the date of commencement of the employee's contract of employment, (f) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires, (g) the rate or method of calculation of the employee's remuneration, (h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval, (i) any terms or conditions relating to hours of work (including overtime), (j) any terms or conditions relating to paid leave (other than paid sick leave), (k) any terms or conditions relating to— (i) incapacity for work due to sickness or injury and paid sick leave, and (ii) pensions and pension schemes, (l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee's contract of employment) to determine the employee's contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice, (m) a reference to any collective agreements which directly affect the terms and conditions of the employee's employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made. (2) A statement shall be given to an employee under subsection (1) notwithstanding that the employee's employment ends before the end of the period within which the statement is required to be given. (3) The particulars specified in paragraphs (g), (h), (i), (j), (k) and (l) of the said subsection (1), may be given to the employee in the form of a reference to provisions of statutes or instruments made under statute or of any other laws or of any administrative provisions or collective agreements, governing those particulars which the employee has reasonable opportunities of reading during the course of the employee's employment or which are reasonably accessible to the employee in some other way. (4) A statement furnished by an employer under subsection (1) shall be signed and dated by or on behalf of the employer. (5) A copy of the said statement shall be retained by the employer during the period of the employee's employment and for a period of 1 year thereafter. Conclusions The complainant claims that she did not receive anything that resembles a statement in writing containing the terms and conditions of her employment contract. The respondent produced a one page letter, which is not addressed to anyone, it is unsigned and not dated. The letter has a reference to work start date, a twelve-week trial period, the salary per week and days of the week she will be employed. The complaint claims that she never was presented with that heretofore. The complainant did present a photocopy of a handwritten note from the respondent which outlined the respondents understanding of her entitlements to annual leave for 2016. Leaving aside the difference of opinion of the parties whether the “contract” letter was exchanged or not, it is clear the “contract” letter contents does not meet the requirements of Section 3 of the Act. I am satisfied that the onus is on the employer to ensure that it fulfils its obligations under the legislation not later than two months after the commencements of an employee’s employment. Accordingly, I find that the respondent failed to provide the claimant with a copy of a signed contract of employment with her terms and conditions of her employment. Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998 - CA-00012835-005 The Law Leave on grounds of force majeure.
(2) The persons referred to in subsection (1) are— (a) a person of whom the employee is the parent or adoptive parent, (b) the spouse of the employee or a person with whom the employee is living as husband or wife, (c) a person to whom the employee is in loco parentis, (d) a brother or sister of the employee, (e) a parent or grandparent of the employee, and (f) a person other than one specified in any of paragraphs (a) to (e), who resides with the employee in a relationship of domestic dependency. (2A) For the purposes of subsection (2)(f) — (a) a person who resides with an employee is taken to be in a relationship of domestic dependency with the employee if, in the event of injury or illness, one reasonably relies on the other to make arrangements for the provision of care, and (b) the sexual orientation of the persons concerned is immaterial. (2B) Paragraph (b) of subsection (2A) is not to be taken to limit in any way the classes of persons in respect of whom an employee is entitled to force majeure leave by virtue of subsection (2)(f). (3) When an employee takes, force majeure leave, he or she shall, as soon as reasonably practicable thereafter, by notice in the prescribed form given to his or her employer, confirm that he or she has taken such leave and the notice shall specify the dates on which it was taken and contain a statement of the facts entitling the employee to force majeure leave. (4) Force majeure leave shall consist of one or more days on which, but for the leave, the employee would be working in the employment concerned but shall not exceed 3 days in any period of 12 consecutive months or 5 days in any period of 36 consecutive months. (5) A day on which an employee is absent from work on force majeure leave in an employment for part only of the period during which he or she is required to work in the employment on that day shall be deemed, for the purposes of subsection (4), to be one day of force majeure leave. Conclusions I accept that the complainant is a single parent with a 9-year-old daughter who fell ill and was referred to hospital by her GP on Tuesday 28 March and the complainant had to take time off to monitor her sick child. The complainant claims that she sent a letter to the respondent on 29 March requesting three force majeure days’ leave. She claims that the respondent said she never heard of such leave and would not pay her. The respondent claims that she was approached by the complainant after the event, handed the letter with the medical certificate, looking for three days force majeure. The respondent said that she genuinely was not familiar with the entitlement regarding force majeure leave and said she would have to check it out with her accountant. The respondent claims that she never said she would not pay it as suggested by the complainant. Again, the evidence is very much contested here. However, the most important fact in the matter is that the force majeure leave, be it either refused or not, was not paid and I have not been presented by any evidence to suggest the complainant is not or should not be entitled to this leave. The complainant claims that her application for force majeure leave was in line with the conditions set out in Section 13(1) of the Act, namely, this was an urgent family matter owing to the illness of the complainant’s young daughter who had abdominal pain and was referred to hospital. The presence of the complainant was indispensable as she was a lone parent tending to her daughter at hospital and monitoring her subsequently at home and the application submitted by the complainant was timely and supported by medical evidence. While I have a certain amount of sympathy for the respondent in that three consecutive days force majeure leave would not be the norm and should only be granted in exceptional circumstances. However, from my interpretation of the Act it would indicate that three consecutive days is not disbarred. I note the evidence of the complainant that her daughter’s health was a worry, she was a lone parent, her family were in Poland that she was required to stay at home to monitor her child. I also note that she has concerns over her annual leave entitlements vis-á-vis her complaint under Section 27 of the Organisation of Working Time Act to the Workplace Relations Commission. Accordingly, I accept the complainant’s evidence that in the circumstances and in her particular domestic and family circumstances, her immediate presence was indispensable for the duration of her daughter’s illness for three days. Therefore, in accordance with Section 21 of the Act I find that the complainant should be granted the force majeure leave for which she applied. This amounts to a monitory value loss of €228, which is equivalent to 3 days’ remuneration. |
Decision:
Section 41 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.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00012835-001 In accordance with Section 27 of the Act, I declare the complaint is well founded and order the respondent to pay to the complainant the sum of €300 in compensation for being in breach of Section 12 of the 1997 Act. Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00012835-002 In accordance with Section 27 of the Act, I declare the complaint is well founded and order the respondent to pay the complainant the sum of €634.60 for her annual leave entitlements; plus €500.00 in compensation, i.e. a total payment of €1,134.60 must be paid to the complainant. Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00012835-003 In accordance with Section 27 of the Act, I declare the complaint is well founded and order the respondent to pay the complainant the sum of €76 for her Public Holiday entitlements; plus €300.00 in compensation, i.e. a total payment of a total payment of €376.00 must be paid to the complainant. Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 - CA-00012835-004 I have found that the respondent is in breach of its obligations under Section 3 of the Terms of Employment (Information) Act, 1994. In accordance with Section 7 of the Act, I order the respondent to pay the complainant compensation of €760. Complaint seeking adjudication by the Workplace Relations Commission under section 18 of the Parental Leave Act 1998 - CA-00012835-005 I declare the complaint is well founded. In accordance with Section 21 of the Act I require the respondent to pay to the complainant the sum of €228 the gross monetary value for the 3 days force majeure leave as compensation. |
Dated: 20 November 2017
Workplace Relations Commission Adjudication Officer: James Kelly
Key Words:
Organisation of Working Time Act - Parental Leave Act - Terms of Employment (Information) Act - Annual leave - Public Holiday - force majeure leave |