ADJ-00019362

Complainant

Respondent

Anonymised Parties

Nail Technician

Health Club

Representatives

Joseph Mulville

Robert Bishoff

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00025253-001

24/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00025253-002

24/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00025253-003

24/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00025253-004

24/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00025253-005

24/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00025253-008

24/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00025253-009

24/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00025253-010

24/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00025253-011

24/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00025253-012

24/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00025253-013

24/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00025253-014

24/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00025253-015

24/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00025253-016

24/01/2019

The Complainant was employed as a Nail Technician from 29th May 2018 to 26th September 2018. She was paid €15.00 per hour and worked an average of 30 hours per week. She has presented claims under the Terms of Employment (Information) Act, Payment of Wages Act, Organisation of Working Time Act and Industrial Relations Act. She has sought compensation.

The Complainant stated that she worked Sunday 12th August 2018, 9.15 to 18.15 less 1-hour break. She received no premium for working Sunday.

(2) CA 25253-003

The Complainant stated that she worked Sunday 9th September 2018, 12.15 to 18.15 less 30 minutes break. She received no premium for working Sunday.

(3) CA 25253-004

The Complainant stated that she worked Sunday 23rd September 2018, 10.15 to 18.15 less 1-hour break. She received no premium for working Sunday.

(4) CA 25253-014

On 28th August 2018 she finished her shift at 22.15 and started the next day at 8.45 and so she did not get the 11-hour rest period.

On 4th September 2018 she finished her shift at 22.15 and started the next day at 8.45 and so she did not get the 11-hour rest period.

On 11th September 2018 she finished her shift at 22.15 and started the next day at 8.45 and so she did not get the 11-hour rest period.

(5) CA 25253-015   Breaks

On 27th June 2018 she worked 9.5 hours and got 30 minutes break

On 30th June 2018 she worked 9.5 hours and got 30 minutes break

On 3rd July 2018 she worked 9.5 hours and received 45 minutes break (15 mins at 2.45 and 30 mins at 19.30)

On 5th July 2018 she worked 12.5 hours and got 45 minutes break.

On 21st July 2018 she worked 9.5 hours and received 45 minutes break.

On 22nd September 2018 she worked 9.25 hours and received 45 minutes break.

(6) CA 25253-016

She did not get Public Holiday entitlement for June and August Bank Holidays. The Respondent told her that she received 6 and 7 hours respectfully but there were no payslips to support this. Later she was told that she wasn’t entitled to such pay. She is claiming one fifth of a week’s pay in respect of each Public Holiday.

Summary of Respondent’s Case:

The Respondent accepted that she worked those three Sundays and no premium was paid.

(4) CA 25253-014, 11-hour rest between shifts

The Respondent stated that staff finish at 10.00pm and clean up before leaving. He was unaware of the requirement for an 11-hour rest period.

(5) CA 25253-015, Breaks

The Respondent believed that she got her breaks but accepted the Complainant’s position.

(6) CA 25253-016

The Respondent stated that he understood that she was paid but he accepts her position.

Findings and Conclusions:

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

4) CA 25253-014, 11-hour rest between shifts

I have decided that the Respondent has breached Sec 11 of this Act.

I have decided that this complaint is well founded.

I require the Respondent to pay the Complainant compensation of €250 for breach of her rights under this Act.

5) CA 25253-015, Breaks

I have decided that this claim was not well founded and so it fails.

(6) CA 25253-016

I have decided that the Respondent has breached Sec 21 in respect of the August 2018 Public Holiday.

I have decided that this complaint is well founded in respect of the August Public Holiday.

I have decided that she is entitled to be paid €30 compensation for the economic loss of the August Public Holiday.

In summary I have decided that the Respondent should pay €106.87 for the economic loss and in addition they should pay €325.00 for compensation for breach of her rights under this Act. This is to be paid within six weeks of the date below.

CA 25253-005

The Complainant has claimed that she was underpaid by 0.75 hours amounting to €11.25 in respect of 7th June 2018. She accepts that some of the claims are out of time but she went to the Inspectorate firstly.

CA 25253-008

She has claimed that Revenue informed her that a refund of €390.60 was made on 14th June 2018 but was not passed on to her. The P21 shows that she is due it. This is in respect of 14th June 2018.

CA 25253-009

She has claimed that she was underpaid by 0.25 hours amounting to €3.75 in respect of 28th June 2018.

CA 25253-010

She has claimed that she was underpaid by 0.50 hours amounting to €5.67 in respect of 12th July 2018.

CA 25253-011

She has claimed that she was underpaid by 1.25 hours amounting to €19.35 in respect of 2nd August 2018.

CA 25253-012

Her hours were miscalculated by an amount of €100 instead of €588.75 she received €488.75 in respect of 30th August 2018.

CA 25253-013

She has claimed that there was a miscalculation of her commission amounting to an underpayment of €1.39 in respect of 27th September 2018.

CA 25253-005

The Respondent stated that her working week was Monday to Sunday. The Complainant has miscalculated. The system shows that she worked 24.7 hours and she has claimed 25.75 hours. He would not dispute the one hour.

CA 25253-008

He stated that she had no tax credits and she didn’t have them, so she was due the €390 but it was off set against the tax credits. She received €1,519 but he believes that €100 is still owed.

CA 25253-009

He stated that he wouldn’t dispute 0.25 hour.

CA 25253-010

He disputed that she was underpaid by 0.5 hour according to his records but he wouldn’t dispute it due to amount involved.

CA 25253-011

He stated that she worked 36 hours 15 mins and he won’t dispute it due to amount involved.

CA 25253-012

He accepted that she is owed €100.00.

CA 25253-013

He stated that he wouldn’t dispute the amount claimed.

CA 25253-005

This complaint was presented to the WRC on 24th January 2019. The period that may be investigated is 25th July 2018 to 26 September 2018 the date of termination of employment. As per the time limit as set out in Sec 6 (4) of the Act it states “a rights commissioner shall not entertain a complaint under this section unless it is presented to him within the period of 6 months beginning on the date of the contravention to which the complaint relates

I find that this complaint is out of time and I do not have jurisdiction to deal with it.

CA 25253-008

I have decided that this complaint is not well founded for the above stated reasons.

CA 25253-009

I have decided that this complaint is not well founded for the above stated reasons.

CA 25253-010

I have decided that this complaint is not well founded for the above stated reasons.

CA 25253-011

I have decided that this claim is well founded and the Complainant is owed €19.35.

CA 25253-012

I have decided that this claim is well founded and the Complainant is owed €100.00.

CA 25253-013

I have decided that this claim is well founded and the Complainant is owed €1.39.

Overall, I have decided that the Complainant is owed €120.74 and I require the Respondent to this amount within six weeks of the date below.

The Worker stated that she had been suffering with a neck injury. She went to her GP and was certified unfit for 3 days. She told her manager who said that she was unreliable. The manager told her to go away until her neck was healed. She had sought reduced hours of work, but it was declined. The manager removed her from the roster system for 3 days. Later that night she tried to access the work system, but she couldn’t get in. She ‘phoned reception that night and it was confirmed by the owner that she was taken off the system. She understood that her employment was terminated having been taken off the system and she requested from the owner confirmation of the termination in writing.

She stated that this is not the way to treat people. She is seeking compensation. She hasn’t worked since her termination date. She didn’t seek work pre-Christmas as she wanted to go home for Christmas to the North and she knew that if she had a job she would be let off. She has sought work since but there are few opportunities in the Springtime.

The manager met with the Worker to discuss her injury. She thought that she had a back injury. The manager suggested that she work reduced hours or take time off to get better. That meeting took place at 12.30pm and she worked on until 7.30pm. She went to another work colleague at 7.30 pm to tell him that she had been dismissed. That work colleague told the owner what she had told him. The owner stated at the hearing that he was only person who had authority to dismiss someone. He had never dismissed anyone in all the years in business. The manager could not dismiss her or anyone for that matter. The owner told the receptionist to take her off the roster system as she was due to have clients the next day. The next day the Worker emailed looking for a letter of termination. As far as they were concerned she had left of her own accord. There was no dismissal.

I note the conflicting positions of both parties.

I find on the balance of probability that the manager had a discussion with the Worker regarding her injury.

I find that the manager told her that she should take time off to get better.

I find that the Worker interpreted this as a dismissal. Yet she continued to work from 12.30 to 7.30pm despite believing that she was dismissed.

I find that this does not make sense.

I note the owner’s position that he was the only person with authority to dismiss a person.

I find that the owner was advised by a work colleague of the Worker, that she told him that she was dismissed.

I find that the owner then removed the Worker from the roster system so as to avoid problems the next day with customers.

I note that the next day the Worker emailed the owner seeking a letter of termination.

I find that the owner had an opportunity to correct the Worker’s misunderstanding of the situation, but he did not. He stated that he understood that she had left.

I find that the owner made no attempt to contact the worker to clarify what actually had occurred.

I find that there was no dismissal.

I find that if the Worker believed that she had been treated badly then she should have raised a grievance, but she failed to do so.

I find that it is imperative to raise and exhaust the local grievance procedures before taking a claim to the Workplace Relations Commission under this Act.

The Labour Court in its decision Rec INT 1014 stated, “The Court is not prepared to insert itself into the procedural process in a situation where the dispute resolution procedures have been bypassed”.

I find that the local procedures in-house were not utilised and exhausted before this matter was referred to the WRC.

I also find that the Worker has not shown a determination to find work in an industry where there appears to be a significant shortage of Nail Technicians.

I find that she has not tried to mitigate her loss.

For the above stated reasons I recommend that this claim is not well founded and that it fails.