Complainant

Respondent

Anonymised Parties

A Part Time Worker

A Bakery

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00024052-001

12/12/2018

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

CA-00024052-002

12/12/2018

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

CA-00024052-003

12/12/2018

The Complainant was employed by the Respondent on a part time basis until June, 2018 when the business closed. The Complainant has brought three claims as outlined above and these were received by the WRC on 12/12/2018.

The Complainant submitted that she worked on a part time basis for the Respondent for over ten years and that she was away on holidays when the business ceased to trade on the 15th June, 2018. The Complainant stated that she was notified of this by telephone on the 18th June, 2018 and that she called to meet the Respondent on the 19th June. The Complainant stated that when she met the Respondent on 19 June, ’18 she was assured that all outstanding monies due to her would be paid but that this has not happened. The Complainant’s claims are as follows:

·         CA-00024052-001

In a letter to the WRC dated the 17th January, 2019 received by the WRC on the 21st January, the Complainant stated that she “was due four days holiday at €90 per day”. At the adjudication hearing, the Complainant clarified that the leave year in the business ordinarily ran from September to September. For the last year September 2017 to June 2018 when the business closed, the Complainant was claiming four days were still due to her which comprised three days for the September 2017 – June 2018 leave year and one carry over day.

·         CA-00024052-002

In the letter of 17th January, 2019 received by the WRC on the 21st January, the Complainant stated that she “was working at this employment for ten and a half years or so, to my knowledge, I am due six weeks notice at €270 per week. In total that amount comes to €1980”. At the adjudication hearing the Complainant stated that she had no written contract of employment. She stated that she was not sure when she started – it was either 2007 or 2008 and that she would not argue the point. She stated that she was seeking her statutory notice pay.

·         CA-00024052-003

The Complainant stated that she worked extra days in May 2018, that she did extra Tuesdays and that but for the business closing, she would have taken these as time in lieu. The Complainant identified these days as 8/5/18, 15/5/18, 22/5/18 and 29/5/18 and she sought to be compensated for this additional time worked @€90 gross per day.

The Respondent stated that it had no choice but to close down the business due financial difficulties including with Revenue. The Respondent advised that as a result, the money in its bank account was frozen which left the Respondent with no alternative but to close the business in June, 2018.

In relation to the Complainant’s claims the Respondent stated:

·         CA-00024052-001

The Respondent disputed that four days leave were due to the Complainant. The Respondent stated that the Complainant was paid cash for six days leave between 11 and 25 June, 2018. There was considerable discussion at the adjudication hearing about the taking of annual leave. At the end of the discussion the Respondent stated she accepted the Complainant was due three days leave.

·         CA-00024052-002

In relation to notice, the Respondent stated that the Complainant commenced employment on a part time basis on the 22nd September, 2008 and that she had continued in the Respondent’s employment until the business closed on the 15th June, 2018. The Respondent accepted that the Complainant did not receive notice pay but stated that based on her years of service, she was not entitled to six weeks statutory notice. The Respondent agreed to furnish written confirmation of the dates of the Complainant’s employment.

·         CA-00024052-003

The Respondent stated that she had no recollection of the Complainant working four Tuesdays in May 2018 and she disputed that the Complainant would have worked every Tuesday in May ’18. The Respondent stated that she had always been flexible with the Complainant whenever she required time off and that she would have been granted time in lieu for any additional days worked.

·         CA-00024052-001

Section 25 the Organisation of Working Time Act [1997-2019] provides that an employer is required to keep records of an employee’s hours of work. At the adjudication hearing there was considerable discussion and at times confusion as to which annual leave days had been taken by the Complainant and as to carry over days. However, the Respondent accepted that the Complainant was due three annual leave days.

The Complainant has brought this claim under the Payment of Wages Act, [1991-2019] which at Section 1 defines wages as meaning “any sums payable to the employee by the employer in connection with his employment, including –

a)       “any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

b)      …….”.

In all the circumstances having reflected on the discussion at the adjudication hearing, I decide this complaint is well founded.

·         CA-00024052-002

The Respondent accepted at the adjudication hearing that the Complainant had not been given any notice of termination of her employment. The only issue to be clarified therefore was the dates of the Complainant’s employment since under the Minimum Notice and Terms of Employment Act [1973-2017] the length of employment determines the notice period. The Complainant herself was not clear on whether she commenced in 2007 or in 2008 and she stated that she would not argue this point. As agreed at the adjudication hearing the Respondent’s accountants sent an email to the WRC on the 22nd November, 2019 which advised:

     “Dear Sirs

       Please see below the Start and Finish Dates I have for [C],

     Start       22/09/2008

     Finish     15/06/2018”

The Complainant has brought this claim under the Payment of Wages Act, [1991-2019] which at Section 1 defines wages as meaning “any sums payable to the employee by the employer in connection with his employment, including –

a)       “……, …

b)      any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice”.

In all the circumstances, I decide this complaint is well founded.

·         CA-00024052-003

The Complainant is seeking payment in lieu for four additional days worked/ie four Tuesdays – 8/5/18, 15/5/18, 22/5/18, 29/5/18 at her daily rate of €90 gross per day.

Section 27 of the Organisation of Working Time Act [1997-2019] provides that an Adjudicator under Section 41 of the Workplace Relations Act, [2015] shall:

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 the circumstances, but not exceeding 2 years remuneration in respect of the employee's employment”.

From the discussion at the adjudication hearing, I am satisfied there was flexibility in the workplace in relation to days worked and taking time in lieu and that this flexibility benefitted both parties. Whilst the Respondent has disputed that the Complainant worked four Tuesdays in May 2018, at the same time she stated she had no recollection of any such days being worked. Having reflected on the matter, I decide this complaint is well founded.

A Part Time Worker V A Bakery