ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00021833
Parties:
| Complainant | Respondent |
Anonymised Parties | A Bar Manager | A Public House |
Representatives | Alastair Purdy & Co. Solicitors | Did not attend |
Complaints:
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-00028661-001 | 24/05/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00028661-002 | 24/05/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00028661-003 | 24/05/2019 |
Date of Adjudication Hearing: 29/08/2019
Workplace Relations Commission Adjudication Officer: Andrew Heavey
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The complainant was employed by the respondent from July 2005 until her summary dismissal on or about 15th April 2019. The complainant worked 40 hours per week and was paid €400 net per week. The complaints were referred to the Workplace Relations Commission (WRC) on 24th May 2019 and relate to breaches of the Organisation of Working Time Act, 1997 and the Payment of Wages Act, 1991. Further complaints (ADJ 000-21175 refers) were submitted to the WRC on 16th April 2019 and 24th April 2019 and refer to other alleged breaches of the Organisation of Working Time Act, 1997, the Payment of Wages Act, 1991, the Terms of Employment (Information) Act, 1994 and the Unfair Dismissals Act, 1977. |
Summary of Complainant’s Case:
CA-00028661-001 – Annual Leave (Hours) The complainant contends that she did not receive the appropriate Annual Leave entitlements in respect of hours worked while in the employment of the respondent. The complainant contends that by virtue of Section 20(2)(b) of the Organisation of Working Time Act, 1997 annual leave entitlements should be paid in accordance with the normal weekly rate of pay. Accordingly, having received only one week’s holiday with pay, the complainant is seeking that she be paid three weeks’ pay in lieu of annual leave entitlements. CA-00028661-002 – Annual Leave (Pay) The complainant is seeking compensation in relation to breaches of the Organisation of Working Time Act, 1997 in respect of annual leave entitlements not provided to her for the entire duration of her employment with the respondent. The complainant is seeking compensation beyond the cognisable period of the complaint submitted for the continuous and blatant breaches of the legislation. The complainant’s representative cited the Northern Ireland Court of Appeal Decision in Chief Constable of the Police Service of Northern Ireland and Northern Ireland Policing Board v Alexander Agnew & Others [2019] NICA 32 in support of its position in that regard. CA-00028661-003 – Notice entitlements. The complainant stated that she was summarily dismissed on 15th April 2019 when collecting her wages from the respondent. The complainant stated that when she queried the reduction in pay, she was dismissed. The complainant stated that by virtue of her service with the respondent she should have received six weeks’ pay in lieu of notice entitlements. |
Summary of Respondent’s Case:
The respondent did not attend the adjudication hearing and was not represented. |
Findings and Conclusions:
It is regrettable that the respondent did not attend the adjudication hearing to put forward its position in relation to the complaint. I also note that a Liquidator was appointed to the respondent by the High Court with effect from 29th July 2019. CA-00028661-001 – Annual Leave (Hours) The complaint was submitted to the WRC on 24th May 2019. The cognisable period of the complaint is 24th December 2018 to 24th May 2019. The entirety of the 2018-2019 leave year is encompassed by the complaint. The complainant outlined that she received and was paid for just one week’s holiday in the 2018-2019 annual leave year and is seeking that she be paid for three weeks outstanding annual leave entitlements. As the respondent did not attend the adjudication hearing, I was unable to clarify the exact level of outstanding entitlements in respect of annual leave or to obtain adequate records in relation to the complainant’s entitlements. The complainant submitted payslips from April 2018 – June 2018 which showed that she did not receive any annual leave entitlements during that period. Having considered the matter and on the basis of the complainant’s direct evidence I am satisfied on balance that the complaint is well founded. CA-00028661-002 – Annual Leave (Pay) The complainant cited the Court of Appeal Decision in Chief Constable of the Police Service of Northern Ireland and Northern Ireland Policing Board v Alexander Agnew & Others [2019] NICA 32 in support of its contention that the complainant should be compensated for the breaches of the legislation in relation to annual leave entitlements for the duration of her employment. On this issue I note that Section 41(6) of the Workplace Relations Act, 2015 sets out the time limits in relation to referring complaints to the WRC. The Act provides for a six-month time limit which can be extended to twelve months if reasonable cause can be shown for the delay in submitting a complaint. Any complaint relating to earlier years of annual leave entitlements is clearly statute barred by operation of the six-month time limit prescribed by the Act. This issue was definitively decided by the High Court in Royal Liver Assurance v Macken, High Court, Unreported, Lavan J, 15th November 2002. Accordingly, this complaint is out of time. CA-00028661-003 – Notice entitlements On the basis of the complainant’s summary dismissal, I find that the complaint relating to Notice entitlements is well founded. In accordance with Section 4(2)(d) of the Minimum Notice and Terms of Employment Act, 1973 the complainant is entitled to six weeks’ notice pay. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00028661-001 – Annual Leave (Hours) The complaint is well founded. The respondent is directed to pay the complainant the value of three weeks annual leave entitlements for the 2018-2019 Leave Year. This amounts to a net payment of €1,200. The respondent is also directed to compensate the complainant €1,000 in respect of the infringement of her employment rights in respect of annual leave entitlements. CA-00028661-002 – Annual Leave (Pay) Having considered the submissions of the complainant, I find that the complaint is out of time and is therefore statute barred. CA-00028661-003 – Notice entitlements. The complaint is well founded. The respondent is directed to pay the complainant €2,400 in respect of notice entitlements. |
Dated: 16/01/20
Workplace Relations Commission Adjudication Officer: Andrew Heavey
Key Words:
Notice entitlements, Annual Leave entitlements. |