Complainant

Respondent

Anonymised Parties

A Nail Technician

A Nail Bar

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-00027866-001

18/04/2019

The Complainant is a Polish National who has taken two identical complaints against two separately named employers. The complaint is conjoined with ADJ 21185.

The Complainant was represented by the Independent Workers Union and there was no appearance by or on behalf of the Respondent.

The case was enabled by the presence of a Polish Interpreter.

The Union outlined that the complainant had worked at a named Nail Bar from 14 April 2016 until her resignation on 26 February 2019.

Her 2018 P60 indicated the current named employer which concurred with the employer name cited on a pay slip dated 28 September 2018. The contract of employment reflected the trading name of the company.

On 26 February 2019, the complainant submitted her resignation from employment. She presented a copy to the hearing and it stated:

“The reasons for my resignation are the long-term issues with delays in payment of my wages and the difficulties surrounding annual leave entitlement. I also became an employee of X without my knowledge or consent which resulted in huge difficulties in terms of my maternity benefit payments. Within the next 14 days I ask you to issue my P45 with todays date and a cheque for €1,869.31 to cover annual leave accrued over

1 period of certified sick leave   13.08 days

2 period of maternity leave           8.85 days

€150 awarded by a WRC Adjudicator.”

The Employer did not file a response to the complainant or her Union. Since that date, the complainant did receive two unexplained payments to her bank account dated 24 July and 1 August 2019 with a cumulative total of €350.00. The Union contended that this may be payment of the Adjudicators award but were not certain and contended that the complainants outstanding annual leave was still outstanding on cessation of employment.

The Union submitted which appears to be a Holidays Report attributed to the Respondent where the complainant bizarrely appears to have received 1-hour annual leave payment per week for several weeks from 23 February 2018 to 18 May 2018. Nobody at the hearing could explain this to me outside that this period corresponded with the complainants certified sick leave.

The Complainant told the hearing that she had a lot of problems in the employment, particularly surrounding payment for annual leave. She had been unable to secure her annual leave owed at the cessation of employment. the Complainant confirmed that her sick leave was certified prior to the commencement of her maternity leave in September 2018. She said she needed certainty on this payment.

The Union asked for an award to reflect punitive compensation.

The Complainant was requested to submit details of the sick certificates and P60 to support her claim.

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

I have considered the complaint before me. I was disappointed, given the key role of an employer in an employment relationship and given the undertakings provided to the complainant in the contract of employment that the respondent was not in attendance. I have made similar remarks in a previous case involving the complainant and this employer in ADJ 17479 dated 5 February 2019.

I am satisfied that the Respondent named in this complaint was properly notified of this claim. The Name of the Respondent is reflected in two legal documents, namely the pay slip from 2018 and the contract dated 8 December 2015 but with a date of commencement of 14 April 2015 and 2016.

On a careful perusal of this ambiguous document, I noted that the complainant was “entitled to be paid statutory holidays in accordance with the Organisation of Working Time Act 1997 which equates to 4 weeks per year “

There was a rider which stated that if leave taken exceeds the leave entitlement, any overpayment would be deducted from a final salary payment. The contract did not reflect the amendments to the Legislation (Section 86(1) of the Workplace Relations Act, 2015, on annual leave while on long term sick leave.

Following a complaint made to the EU Commission in December 2013, the Commission opened an investigation into Irelands conformity with EU Law as set down in the Schultz-Hoff /Stringer line of cases, in relation to an entitlement to the accrual of annual leave while on sick leave. The Commission subsequently issued a letter of Formal notice to Ireland indicating a legislative incompatibility with Article 7 of the Working Time Directive as set down in case law of the Court of Justice.

Statutory annual leave accrues during a period of certified sick leave. On termination of employment, payment in lieu of untaken leave applies to leave which is untaken because of illness in circumstances where the employee leaves the employment within a period of 15 months following the end of the leave year during which the statutory leave entitlement accrued

Times and pay for annual leave.

20

20.— (1) The times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements and subject—

( a) to the employer taking into account—

(i) the need for the employee to reconcile work and any family responsibilities,

(ii) the opportunities for rest and recreation available to the employee,

( b) to the employer having consulted the employee or the trade union (if any) of which he or she is a member, not later than 1 month before the day on which the annual leave or, as the case may be, the portion thereof concerned is due to commence, andto the leave being granted —

(i) within the leave year to which it relates,

(ii) with the consent of the employee, within the period of 6 months after the end of that leave year, or

(iii) where the employee —

(I) is, due to illness, unable to take all or any part of his or her annual leave during that leave year or the period specified in subparagraph (ii), and

(II) has provided a certificate of a registered medical practitioner in respect of that illness to his or her employer,

within the period of 15 months after the end of that leave year.

Page 4 of the Contract of employment provides that the complainant should receive payment for any days holidays accrued but not taken.

I have had the benefit of the complainant’s statements on the of the claim for payment of €1,869.31 - €350 paid = €1,569.31. This was uncontested. For my part, I was concerned that there may have been an overlap in the claim referred in the earlier adjudication hearing and without the statutory records obligated by Section 25 of the Act, I had no way of definitively resolving this conflict without respondent input.

As the case stands, the complainant submitted that she has not received annual leave for the period of illness or maternity leave payable at the end of her employment.

The burden of proof on records rests solely on the respondent in the case and I did not have the benefit of their attendance.

In the face of the complainants uncontested evidence, I find that her complaint is a valid complaint and is well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I decide 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 that I decide in relation to the complaint. I have found the complaint to be well founded in this case.

I order the respondent to pay the complainant the annual leave owing for the period of certified sick leave and maternity leave as claimed. This amounts to €1,569.31.

In addition, I order the Respondent to pay the complainant compensation to the amount of €1,500 as a just and equitable remedy for the contravention of the Act in terms of provision of statutory leave and failure to produce records in accordance with Section 25 of the Act which takes it core values, rights and codes from Directive 2003/88/EC in respect of rest and holidays.

Annual leave following sick leave/ maternity leave and on cessation of employment.