Complainant

Respondent

Anonymised Parties

A Sales assistant

A Shop

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-00021631-001

06/09/2018

The Complainant, a lay litigant is a Polish National who worked as a Customer assistant in a Polish grocery store. She claimed that she had not received her Cesser pay on leaving employment in July 2018. The Complainant submitted copies of pay slips obtained through the WRC Inspectorate and Revenue intervention.

There was no appearance by or on behalf of the Respondent.

The Complainant worked for the Respondent Polish Grocery store from 21 May 2018 to 20 July 2018. She was not provided with a contract of employment and submitted that she worked for €9.55 per hour for a 37-hour week. The Complainant sought payment and compensation for 3.5 days annual leave owing on the cessation of her employment. She submitted that she had not availed of this leave during the employment period.

The Complainant submitted that she was informed that the store where she worked was closing suddenly due to food safety issues. She was offered a job in an alternative location, tried it but resigned after one week due to the distance factor.

There was a delay in receiving her salary which was to be arranged in two phases and received a final payment on 29 August 2018. The Complainant submitted several pay slips on the request of the Adjudicator.

There was no appearance by or on behalf of the Respondent. There was no submission of records of annual leave involving the complainant.

I delayed the commencement of the hearing to allow for a delayed attendance by the Respondent. I am satisfied that the Respondent was on notice of all details of the case. I am strengthened in that view by the parallel intervention of the WRC Inspectorate in the case who forwarded the pay slips to the complainant.

I note that the complainant did not have a contract of employment and there was a disparity in the hourly rate submitted at hearing of €9.55 per hour and the €10.00 reflected in the 9 pay slips submitted after the hearing.

The Claim is for untaken annual leave. I note that the pay slips submitted reflected a Sunday premium and a reference to holidays of 27.68 hrs paid in the final pay slip. The Complainant submitted that she was not paid for annual leave. I was unable to obtain any collateral from the Respondent in this matter, neither did I have the benefit of records maintained in accordance with Section 25 of the Act.

I note that the Complainant referred to “a week in hand “of salary which she stated was paid at the end of her employment. Based on her uncontested evidence I find that the complainant is entitled to succeed in her claim for cesser pay on foot of her 9-week record of employment in accordance with Section 23 of the Act.

Compensation on cesser of employment.

23

23.—   (1) (a) Where —

(i) an employee ceases to be employed, and

(ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee,

the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave.

I could not establish that the complainant received payment for untaken annual leave. I did not have the benefits of records to cross match the evidence adduced and the pay slips which followed.

I have found the claim to be well founded