Complainant

Respondent

Anonymised Parties

A Shop Assistant

A Coffee Shop

Representatives

Act

Complaint Reference No.

Date of Receipt

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

CA-00027524-001

03/04/2019

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

CA-00027524-002

03/04/2019

The Complainant started her employment with the Respondent on 8th December 2018. She gave one week’s notice on 28th February 2019. She referred her complaint to the WRC on 3rd April 2019.

The Respondent was notified of the complaints by letter dated 11th April 2019. An adjudication hearing was arranged for 20th June 2019 and following the Respondent’s request received on 18th June 2019 the hearing was postponed. Another hearing was arranged for 30th July 2019 and the parties were notified of the arrangements by letter dated 1st July 2019. On 10th July 2019 the WRC received a letter from the Respondent’s representative with a settlement offer “to close this case and negate the need for our meeting on 30th July 2019.”

The parties were informed that the Adjudication Services of the WRC cannot get involved in payment settlements between parties and the parties should engage directly in respect to the settlement offer.

The Complainant confirmed to the WRC that she would not accept the offer. There was no further communication from the Respondent.

At the outset of the adjudication hearing on 30th July 2019, it became apparent that there was no appearance by or on behalf of the Respondent. I verified that a letter notifying the Respondent of the time, date and venue of the adjudication hearing was issued on 1st July 2019 and, given the Respondent’s communication of 10th July 2019, the Respondent was clearly aware of the hearing arrangements. The Respondent did not apply for a postponement and did not indicate any difficulties attending the hearing. I waited some time to accommodate a late arrival. Having taken these steps, I proceeded with the adjudication hearing in the absence of the Respondent.

The Complainant submits that she did not receive the appropriate payment in lieu of notice of termination of her employment.

The Complainant claims that she was approached by the Respondent to manage a coffee shop and it was agreed that she would start in August 2018. She gave up a full-time position in July 2018 to do so. However, she was not given any work by the Respondent until December 2018.

The Complainant submits that the Respondent was extremely difficult to work for. She outlined a number of difficulties she had such as having to use cold water to wash dishes, lack of payslips, rudeness of the Respondent, and having to work on her own when the Respondent did not turn up for work for a number of days.

The Complainant submits that things came to a head on 28th February 2019. The Complainant told the Respondent that there was no hot water and the ice-cream machine was not working properly. The Complainant claims that she told the Respondent that he was rude and extremely difficult to deal with, that she did not receive her payslips and her wages were delayed. The Complainant told the Respondent that she was giving a week’s notice and her last day of work would be 7th March 2019. The Complainant alleges that the Respondent told her not to come back to work thereafter.

On the same day she received a message from the Respondent requesting that she forward her letter of resignation. The Complainant did so by email. The Respondent then asked her to return the keys to the shop and leave them at a local petrol station and not to return to the shop. The Complainant stated that she emailed the Respondent saying that she was giving the Respondent a week’s notice dated 28th February 2019. She noted in her email that she was willing to work her notice, but it was not suitable for the Respondent. The Respondent replied that it did not understand her email. The Complainant said that she returned the keys on 4th March 2019, but the Respondent reported her to Gardai on 21st March 2019 claiming that she did not do so.

The Complainant submits that she sent another email to the Respondent asking for the outstanding payment and annual leave accrued.

At the hearing the Complainant also argued that she did not receive her pay for the period 18th -22nd February 2019, 25th -28th February 2019 and her week’s notice (28th February – 7th March 2019).

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

Based on the uncontested evidence of the Complainant, I find that she gave her notice to the Respondent on 28th February 2019 and was available for work until 7th March 2019. However, she was instructed not to turn up in the shop thereafter. I therefore find that the Complainant is entitled to a payment in lieu of notice.

In respect to the Complainant’s assertion that she was not paid her wages for the periods 18th -22nd February 2019 and 25th -28th February 2019 I find that at no stage throughout the process was the Respondent made aware that the Complainant alleges underpayment or non-payment of wages for these periods. Having considered the matter, I am satisfied that the Respondent has not been on notice of the Complainant’s claim. I am therefore, of the view that this claim was not properly before me and I do not have jurisdiction to proceed with the claim.

Based on the uncontested evidence of the Complainant, I declare the complaint in relation to the minimum notice to be well founded. I direct the Respondent to pay the Complainant €392 gross in respect of her one week’s notice.

The Complainant submits that she did not receive her annual leave entitlements during her tenure with the Respondent and was not compensated on the termination of her employment. She claims that she worked 40 hours a week for the period from 8th December 2018 to 24th February 2019 and 38 hours in the last week she worked. She was paid €9.80 gross per hour.

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

Section 19 of the Organisation of Working Time Act, 1997 stipulates that:

(1) Subject to the First Schedule(which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

a)      4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

b)      one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

c)       8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.”

Section 23. Compensation on cesser of employment provides

“(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 he would have received had he or she been granted that annual leave.”

Based on the uncontested evidence of the Complainant I find that the Complainant worked 11 weeks at 40 hours a week and one week at 38 hours. She is therefore entitled to 38.24 hours of annual leave at €9.80 gross per hour.

Based on the uncontested evidence of the Complainant, I declare this complaint to be well founded. I direct the Respondent to pay the Complainant €374.75 gross in respect of her outstanding annual leave entitlement.

In addition, I direct the Respondent to pay the Complainant €400 in compensation for breaches of her rights under this Act.

Annual leave- notice