Complainant

Respondent

Anonymised Parties

A Nail technician

A Nail bar

Representatives

Appeared in Person

No Appearance

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-00022549-001

10/10/2018

This Complainant arose from an alleged erratic administration and non-payment of annual leave. The Respondent did not lodge a response to the complaint or attend the hearing in the matter. The Respondent disputed the claim some two weeks post hearing by email communication.

The Complainant attended the hearing accompanied by her partner. She submitted a copy of her contract on my request in the immediate aftermath of the hearing. This was forwarded to the Respondent for comment.

The complainant is a Polish national who has worked as a nail technician from 14 April 2016 on a 24-hour basis. She had a contract of employment from her commencement of employment, where the hourly rate was recorded as €8.65 for a 33-hour week.

The Complainant expressed her unease regarding the way annual leave was administrated and applied at her work place. She outlined that from February 2018 to May 2018 she receives a pay slip containing 1-hour annual leave pay per week. She had not applied for this leave and submitted copies of the pay slips referred to.

The Complainant outlined that she had commenced Pregnancy related sick leave February to September 2018. In May 2018, she made an enquiry regarding her remaining leave, the response to which is that she had a remaining 40 hrs leave which would be paid on 10 September,2018 “on your request”.

The Complainant eventually received payment of €394 in October, one week post her submission to the WRC. The Respondent asked her to withdraw her case, but she wanted to attend the hearing to set out the facts and to explain her apprehension regarding securing annual leave in the future on her return to work.

The Complainant explained that she had experienced difficult financial circumstances regarding the payment due to her and the delayed payment not released until October 2018.

The Respondent had not filed a response to the claim prior to hearing, neither was the respondent in attendance at the hearing or represented. There was no reason forwarded for this position adopted.

On 25 January 2018 at 18.26 hrs the Respondent emailed the WRC in response to the claim for holiday pay. The Respondent submitted they were unaware of other complaints.

I would like to bring to your attention that Ms X was paid full amount on 20 October ,2018. The amount she got paid was €370.

Proof of payment was to follow.

I have considered the claim as outlined before me. I was disappointed that the Respondent did not attend the hearing as I would have appreciated sight of the records of annual leave maintained in the complainant’s case. I would have also welcome their contribution on their recollection of the circumstances of the case. I am satisfied that the Respondent was properly notified, and I allowed a delay in commencing the hearing to allow for a late attendance. The Respondent did not make contact in this case until a post hearing email that I have no way of validating. It is best practice for both parties to attend a Statutory Body hearing such as the WRC to maximise the capacity for both sides to be heard.

The Complainant was accompanied by her husband and was reticent in her outline of the case. I allowed her the time to set out her case and ask questions on any aspects of the hearing.

The Complainant outlined a history of difficulties in securing annual leave at her workplace. I requested sight of the complainant’s contract. This was submitted post hearing and I noted that the contract provided that the business designated some dates as closure dates where annual leave was pre-determined. It went on to outline that “the remainder of your annual leave may be taken by you at your discretion “. This was at variance with how the complainant explained the application process surrounding annual leave. However, she did not make the case that she was in a position where payment for annual leave was outstanding on the day of hearing.

She submitted that her Solicitor had submitted a letter regarding her annual leave to her employer in May 2018. She did not submit a copy of this letter but submitted a copy of a text attributable to her Manager confirming a pay roll validation date May 23, of 40 hours holidays payable at her request on September 10. This date came and went without payment and she referred her claim to WRC on 10 October 2018, following which payment was received. There is a slight discrepancy on the payment received where the complainant says €394 and the respondent wrote €370 on the email I received. The Respondent undertook to forward proof of payment but didn’t. I find that I must accept the complainant evident that she received €394 in payment.

The Complainant is currently on maternity leave until March 2019. I accept her uncontested evidence that the delay in receiving her payment of annual leave placed her in a financial hardship situation prompting her referral to the WRC.

Section 20(1) of the Act sets out the collaborative framework surrounding the deciding of annual leave times allowing for work life balance. This is reflected in the contract. I appreciate that the complainant was absent through illness from February 2018. Section 20 also provides that annual leave during illness can be allocated within a period of 15 months after the end of the leave year. This is the reason why records of annual leave would have been helpful to me in this case and that domain is the sole responsibility of the respondent.

I was uncertain whether the 40 hours referred to an outstanding bank of annual leave or the leave which fell due during sick leave. Given the May 2018 declaration, I am more drawn to it being an outstanding bank of annual leave and the annual leave earned on sick leave is to be managed separately. The Complainant was unable to resolve this conflict for me but was earnest in her wish that her access to annual leave would be a joint endeavour on her return to work in March 2019.

I accept that a payment of annual leave was made in October 2018 following multiple pursuits of payment by the complainant, however, Section 20(2) (a) of the Act provides that annual leave should be paid in advance of taking leave and I cannot establish that this occurred in this case.

The cognisable period of this claim is 11 April -10 October 2018

I have found the complaint to be well founded.

Decision:

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

Section 27 of the Organisation of Working Time Act 1997 requires me to make a decision in accordance with Section 20  Of the Act.

I have found the claim well founded and I order the Respondent to engage directly with the complainant on agreeing annual leave in accordance with the provisions of Section 20 of the Act once she returns to work.

I also award compensation of €150 for the contravention of Section 20 of the Act

Payment of Annual Leave