Complainant

Respondent

Anonymised Parties

A Nail Technician

A Nail Bar 2

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-00027869-001

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 21184.

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. This claim named the owner trading as a Nail bar.

The contract of employment reflected the trading name of the company and was signed by the Respondent named in this claim.

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 today’s 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. This information was not furnished.

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

I have considered this complaint which is conjoined to ADJ 21185. I have found that based on the employment documentation submitted and the complainant’s own evidence, the correct employer is named in ADJ 21184, albeit anonymised for the purposes of the decision.

It would have assisted me greatly had the Respondent made an appearance in this case. I am satisfied that he was correctly notified of the time place and location of hearing and did not furnish an appearance. This was particularly disappointing given the responsibilities of an employer under the presiding Act, derived from an EU Directive in the case. I would have appreciated some clarifications. The Respondent did not file a defence in the claim.

I cannot identify enough information to allow me to deviate from my identification of the correctly named employer in this conjoined case.

The claim has been served on two named employers. I have decided, based on the information available to me today, that the claim was properly placed before the Respondent named in ADJ 21184, therefore I must find that the employer is not correctly identified in this complaint.

I find the complaint is not well founded on that basis.

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.

I have found the complaint is not well founded.

Clarification of Employer, Annual leave following sick leave/ maternity leave at the end of employment