DWT1824

The Complainant’s Employment History

The Complainant was employed as a part-time first-year hairdressing apprentice in the Respondent’s salon between 28 September 2016 and 7 August 2017 on which date her employment was terminated. The Complainant was required to work 20 hours per week over three days and was paid €9.15 per hour. She did not receive payslips from the Respondent.

The Complainant was absent on sick leave on a number of occasions during the course of her employment. Her evidence to the Court is that her absence during each of those periods was medically certified. She says that she provided her employer with the relevant medical certificate in respect of each period of absence. To corroborate her position, she obtained - in advance of the within hearing - a letter from the hospital she had attended to confirm that she had been provided with a medical certificate in respect of her periods of treatment at the hospital. The Respondent, on the other hand, told the Court that she received a medical certificate to cover only the Complainant’s absence in January 2017. However, she was aware that the Complainant needed to attend for hospital treatment from time to time.

Complaints

The Complainant alleges that she did not receive payment for the full amount of annual leave she accrued during her period of employment with the Respondent. She also alleges that she was not paid in respect of four public holidays that fell during the final six months of her employment. It was agreed between the parties that the Complainant, subsequent to the termination of her employment, received a cheque to cover one week’s notice pay which included a payment in respect of the public holiday that fell within that week.

The Respondent submits that on the termination of the Complainant’s employment she issued her a cheque payment of €192.60 to cover what she believed was her accrued annual leave entitlement at that time. She further submits that the Complainant was a part-time employee and did not work sufficient hours in advance of the four disputed public holidays to entitle her to payment for them in accordance with the Act.

At first instance, the Adjudication Officer held that both complaints were well-founded. He directed the Respondent to pay the Complainant a total of €779.40, to include €324.00 in respect of public holiday entitlements and €445.40 in respect of the underpayment of annual leave.

The Law

Section 19 of the Act provides:

19. Entitlement to annual leave
(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),
(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.

Section 21 of the Act provides as follows in relation to public holiday entitlements:

21. Entitlement in respect of public holidays
(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:
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.

Discussion and Decision

Having considered the Parties’ written and oral submissions, the Court finds as follows:

• 
  (a) The Court deems the letter received by the Complainant from her treating hospital corroborates her claim that her absences from work to attend at that hospital were certified absences for the purposes of section 19 of the Act;

  (b) The Complainant accrued an entitlement to 72 hours’ annual leave, which – at €9.15 per hour – fell to be paid, on the termination of her employment, at €658.80 less the amount actually paid by the Respondent of €192.60, leaving a balance of €466.20.

  (c) The Complainant was entitled to receive compensation for four public holidays that fell in the six months prior to her termination (viz. 17 March 2017, 17 April 2017, 1 May 2017 and 5 June 2017) at a rate of €36.60 per day i.e. €146.40 in total.

  (d) In addition to the above monetary equivalent of the Complainant’s entitlements under the Act, the Court deems that an award €500.00 by way of compensation for the breach of her rights to be just and equitable in all the circumstances.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
LS______________________
21 August 2018Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.