ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00014987

Parties:

	Complainant	Respondent
Anonymised Parties	A Weekend Manager	A Department Store

Representatives

Self- Represented

Not Represented – now in UK based Administration

Complaint(s):

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-00019266-001	18/05/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00019266-002	18/05/2018
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967	CA-00019266-003	18/05/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00019266-004	18/05/2018

Date of Adjudication Hearing: 31/01/2019

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015,Section 27 of the Organisation of Working Time Act, 1997 ( referred to below as the OWT Act ) and Section 39 of the Redundancy Payments Act, 1967 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

At the date of the Oral Hearing the Respondent Company (who had first employed the Complainant) was in UK jurisdiction Administration. The Administrator acknowledged the correspondence but declined to attend the Hearing as in his view the employment relationship had ended in April 2018, sometime well before the Administration process commenced in August 2018. No liability was admitted.

Linked claims: This Adjudication ADJ-00014987 is closely linked to ADJ-00018441 (against UK based Corporate “parent” identity of the Respondent) and ADJ-00018678 (against a new Corporate Entity that purchased, on or about the 23rd October 2018, the Store where the Complainant worked until the 6th April 2018)

Background:

The issues in contention concern the issue of whether or not a Sunday Premium was properly paid to the Complainant, whether or not she received Holiday Pay for the period of her Minimum Notice and a Public Holiday that fell in this period. Arising from the Sunday Premium issue the Complainant feels that her pay on which her Redundancy was based is in error and accordingly her Redundancy lump sum should be recalculated.

1: Summary of Complainant’s Case:


Act	Complaint/Dispute Reference No.	Summary Complaint
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00019266-001	No Sunday Premium as specified in Section 14 of the OWT Act,1997
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00019266-002	No Holiday Pay for Period of Pay In lieu of Notice
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967	CA-00019266-003	Redundancy not based on correct rate of pay -ref 19266-001 above
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00019266-004	No Public Holiday paid for Public Holiday that fell due during the Notice Period.

1:1 Sunday Premium - CA -00019266-001

The Complainant maintained that from the date of her first appointment in 2007 she was never given a Sunday Premium in comparison to other Managers who received same. The issue was raised on a number of occasions with Senior Store /Company Managers who all maintained, wrongly the Complainant felt, that her rate included a Sunday element.

It followed from this that her Redundancy pay was based on a wrong figure and should be recalculated.

2: Summary of Respondent’s Case:

The Respondent employer was in Administration by the time of the Oral Hearing. Correspondence was received from the Administrator declining to attend. However, there was extensive written correspondence of file, supplied by the Complainant, in relation to the Complainant’s local efforts to progress the issue at Company level.

In relation to Section 14 (Sunday Premium) of the OWT Act, 1997 the burden of proof lies with the Respondent employer to demonstrate compliance with the Act. The absence of the Respondent made this impossible in this case.

3: Findings and Conclusions:

3:1 Sunday Premium - CA -00019266-001

Section 14 (1) of the OWT Act,1997 states

Sunday work: supplemental provisions.

14.— (1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely—

( a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or

( b) by otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances, or

( c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or

( d) by a combination of two or more of the means referred to in the preceding paragraphs.

Code of Practice SI. No .44 of 1998 - OWT Code of Practice on Sunday Work in the Retail Trade and Related Matters is also relevant.

Legal precedent has now well established that the amount of the Sunday premium must be identifiable in the remuneration of the employee. Case law such as Viking Security v Valent, DWT 149 and Tansley Transport Ltd v Marek Rog Dwt 15104 are generally accepted as establishing he principle that the Sunday Premium element has to be identifiable.

In this case the Complainant was a “Weekend” Manger and had been clearly recruited on this basis. The rate of Pay offered was for a Weekend Manager job which by definition included all liabilities for Sunday Working. In the exchanges of correspondence with the Respondent HR Department and her Managers prior to her Redundancy and before the Administration this point was repeatedly made by the Employers. The Complainant had accepted the position for approximately 11 years although she did raise regular complaints regarding the issue.

Section 14(4) of the Act states

(4) Unless the fact of such a value being so specified has come to the notice of the rights commissioner or the Labour Court, as the case may be, it shall be for the person who alleges in proceedings referred to in subsection (3) that a value of compensation of the kind referred to in that subsection is specified by a collective agreement mentioned in that subsection to show that, in fact, such a value is so specified.

In plain English this means that the Burden of Proof in a case such as this rests with the employer. As the Respondent employer was not present the evidence of the Complainant was unchallenged and as such must be afforded high credibility.

Accordingly, I find that as the Sunday Premium was not clearly specified and readily identifiable the claim has to succeed and is deemed to be well founded.

3:1:1 Redress.

Section 27 (3) states

A decision of an adjudication officer under section 41of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely:

( a ) declare that the complaint was or, as the case may be, was not well founded,

( b ) require the employer to comply with the relevant provision,

( c ) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years ’ remuneration in respect of the employee ’ s employment.

Accordingly, I direct that under (a) the Complaint was well founded, under (b) the Respondent employer should clearly identify what proportion of the rate of pay was to compensate for Sunday working in the salary of a “Weekend Manager” and under (c) pay a once off compensation Lump Sum to the Complainant of €1,500 in redress of a breach of the Act.

It is important to note here that the period for which Compensation can be awarded is limited to the six months preceding the complaint.

A recalculation of the rate of pay is not awarded as it would be limited to the six-month period preceding the end of employment and would not adequately compensate the Complainant for the breach of statutory rights suffered. The Compensation figure awarded can also be seen as covering any differences in a Redundancy Lump sum that might arise in this case.

3:2 CA-00019266-003 -Redundancy Pay calculation.

As the Sunday premium issue has been decided in principle on largely technical grounds I feel that the issue of a recalculation of the Redundancy Lump sum would be of minor benefit. Accordingly, I make no award here but refer to the Redress awarded under the Sunday Premium issue as covering this complaint.

3:3 CA-00019266-002 - Holiday entitlement (Annual Leave) during Notice Period.

Entitlement to Holidays is covered by Sections 19 and 20 of the OWT Act, 1997. Section 23 provides for “Compensation on cesser of employment”. However, the question raised here of Annual leave entitlements during a Notice period is unclear. In a case of PILON, as we have here, the Employee is clearly not at work and is not accruing Annual Leave. Section 23 (4) of the OWT Act refers to the Social Welfare position and the Employee as “not having been, on the Public Holiday concerned, in the employment of the employer concerned.”

However, the Second Schedule of the Minimum Notice and Terms of Employment Act,1973 – “Rights of an Employee during Period of Notice” effectively guarantees Holidays –

“shall have the same rights to sick pay or holidays with pay as he would have if notice of termination of his contract of employment had not been given”

The situation is ambiguous. On balance I have to come to the view that entitlement to holiday accrual is proper during the notice period -particularly as the employee is this case was prepared to work out their notice and remained in receipt of Staff Discount Benefits during this notice period.

Accordingly taking the 0.08 % rule in calculation a sum of some €184.28 is due for Holiday Pay.

Unfortunately, as the Respondent was not present to give evidence I could not accurately determine if this money had actually been paid.

On the Balance of Probability, I took the decision to award the sum of € 184.28 to the Complainant in lieu of Holiday Pay not received during the Notice Period.

3:4 CA-00019266-004 – Public Holiday entitlement (Annual Leave) during Notice Period.

Taking the logic applied above for Annual leave I also award one day’s pay in lieu of the public Holiday that fell during the Notice Period. Taking the figure supplied by the Complainant I estimated this be a sum of € 153.57.

Again, the absence of the Respondent, to vouch for figures, made it of necessity a judgement based on the balance of probability.

4: Decision:

Section 41 of the Workplace Relations Act 2015; Section 27 of the Organisation of Working Time Act, 1997 (referred to below as the OWT Act) and Section 39 of the Redundancy Payments Act, 1967 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions of the cited Acts.

Act	Complaint/Dispute Reference No.	Summary Decision /Please refer to Section Three above for detailed reasoning.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00019266-001 Sunday Premium	Claim is well founded on largely Technical grounds- A compensation sum (for breach of a Statutory right,) of €,1,500 is awarded to the Complainant.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00019266-002 Annual leave entitlement during Notice period.	Claim is well founded. A sum of €184.28 is awarded as compensation for Holiday pay not awarded for the Notice Period.
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967	CA-00019266-003 re calculation of Redundancy figures.	Claim well founded on technical grounds. No redress awarded but reference is made to the Award for Complaint 19266-001 above.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00019266-004 Public Holidays during Notice period.	Complaint is well founded on technical grounds. A sum of €153.57 is awarded for a Public holiday not allowed for.

The proper Taxation of these awards is a matter to be considered in conjunction with the Irish Revenue Commissioners.

Dated: 23rd April 2019

Workplace Relations Commission Adjudication Officer: Michael McEntee