ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00015282
Parties:
| Complainant | Respondent |
Anonymised Parties | A Hairdresser | A Hair Salon |
Representatives |
|
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Complaints:
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-00019770-001 | 14/06/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00019770-002 | 14/06/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00019770-004 | 14/06/2018 |
Date of Adjudication Hearing: 05/09/2018
Workplace Relations Commission Adjudication Officer: Pat Brady
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 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.
Background:
The complainant worked with the respondent between December 2012 and January 5th 2018. She was paid €166.50 for an eighteen-hour week. |
Summary of Complainant’s Case:
There are three complaints. The first relates to annual leave. The complainant says that she got no annual leave in 2017. The second complaint is that she received no premium payment for working on a Sunday. She says that she worked one or two Sundays every month, although she was not provided with pay slips until June 2018 following an investigation by the WRC. She says that these pay slips do not reflect her actual time worked and may have been written long after the period to which they refer. The third complaint concerns payment for public holidays. |
Summary of Respondent’s Case:
The respondent did not attend the hearing. No explanation was received for the failure to do so. The respondent’s solicitor corresponded with the WRC on July 18th 2018 challenging the complaints on the basis that they had not been made within the statutory time limits. |
Findings and Conclusions:
Turning first to the complaint regarding annual leave. The complainant has said that she had no annual leave in 2017. Taking the annual leave year as running from April 1st this would give rise to an entitlement to annual leave based on her service to January 5th 2018. She worked two nine hour days per week and therefore the period for which I must calculate her entitlement is thirty seven weeks at eighteen hours per week; a total or six hundred and sixty-six hours. Her annual leave entitlement is to be calculated on the basis of 8% of these hours giving an entitlement to 53.3 hours at €9.25 per hour; g a total of €493.00.
In relation to the time limits a person may complain within six months of the termination of their employment as their entitlement to annual leave remains in force until they leave. The complaint is therefore within time.
In turning to the claim for Sunday payment the delay in submitting the complaint will limit the applicable period for which a claim can be made; in this case only back to December 15th 2017. A remedy may only be granted in respect of the breaches falling within the statutory period of six months (or any extension of it.) Royal Liver Assurance Ltd v Macken. High Court, Unreported 15th November 2001.
The complainant was vague about the number of Sundays she worked; saying it was ‘one or two a month’. I must take account also of the Christmas period. In this case that would leave only two that she could have worked in the cognisable period; December 17th and 24th 2017.
In the circumstances, the complainant has not made out a sufficiently persuasive case for payment.
Similarly, the time limits apply to restrict the complaint regarding public holiday entitlement. There are three public holidays in the period; December 25th, and 26th and January 1st and it appears that the complainant was not paid for these days.
This complaint also succeeds. |
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.
I uphold complaint CA-00019770-001 and award the complainant €493.00. I uphold complaint CA-00019770-004 and award the complainant €249.75 being three days’ pay. I do not uphold complaint CA-00019770-002 for the reasons outlined above and it is dismissed. |
Dated: 07/02/19
Workplace Relations Commission Adjudication Officer: Pat Brady
Key Words:
Annual Leave, Sunday Premium, Time limits |