Complainant

Respondent

Anonymised Parties

A General Assistant

A Retail Supermarket

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-00021365-001

27/08/2018

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

CA-00022516-001

09/10/2018

The complainant is employed by the respondent as a General Assistant since 2012. The complaints submitted relate to alleged breaches of the Organisation of Working Time Act, 1997 in respect of Public Holiday entitlements. Complaint application CA-00021365-001 was submitted to the Workplace Relations Commission on 27th August 2018. The cognisable period of the complaint is therefore 28th February 2018 to the 27th August 2018. Complaint application CA-00022516-001 was submitted to the Workplace Relations Commission on 9th October 2018. As there were no Public Holidays between 27th August 2018 and 9th October 2018, the substantive complaint will be dealt with under CA-00021365-001.

The complainant stated that she was not provided with the correct Public Holiday entitlements in respect of 2016 and 2017. The complainant’s representative stated that although the respondent has rectified the matter in respect of Public Holiday entitlements, it is not satisfied that this issue occurred in error. The complainant’s representative outlined that for this to have happened, the respondent would have been in breach of the legislation in terms of its record keeping. The complainant’s representative stated that this is not an isolated incident and is also happening across several of the respondent’s other stores. The complainant’s representative is seeking compensation on behalf of the complainant.

The respondent accepted that there were a number of employees in one of its stores that had not received the correct Public Holiday entitlements for the years 2016 and 2017. The respondent refutes that it was done deliberately and outlined that it occurred due to errors of a member of management at that location who is no longer employed there.

The respondent stated that in relation to this specific complaint, the reckonable period of the complaint is 6 months from the date the complaint was submitted. However, the respondent stated that once the error came to its attention, it rectified the situation for the two years in question and all workers were satisfied that they had received their correct entitlements. The respondent submits that in those circumstances the payment of compensation is not appropriate.

The six-month cognisable period of a complaint submitted to the Workplace Relations Commission is provided for in Section 41(6) of the Workplace Relations Act, 2015 which states as follows:

“(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

Section 27(3) of the Organisation of Working Time Act, 1997 provides as follows:

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.

I note the respondent’s assurance that this was an unfortunate error and was in no way done to deliberately deprive the complainant of her Public Holiday entitlements. I also note the respondent’s contention that this issue is not expected to arise again in any other store.

In all of the circumstances of this complaint and while I accept that the respondent rectified the situation in 2018 and went beyond the six-month cognisable period of a complaint, I am of the view that the complainant should receive some compensation for not receiving Public Holiday entitlements for the two years in question.

Having considered the submissions of both parties, I declare that the complaint is well founded. The respondent is directed to pay the complainant €250 in compensation for the infringement of her rights under the legislation.

Public Holiday entitlement