Complainant

Respondent

Anonymised Parties

A Salesperson

A Furniture Store

Representatives

Self 

Peninsula

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-00031026-001

20/09/2019

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

CA-00031026-002

20/09/2019

The complainant states that he commenced employment with the respondent on 17 October 2011 and was made redundant on 31 May 2019.

The complainant states that his payslips never reflected a Sunday premium rate. He states that in the 7.63 years that he was employed with the respondent, he worked 337 Sundays. He states that the respondent is in breach of the legislation and is seeking his entitlements in respect of Sunday premium. The complainant further states that he is owed monies relating to Public Holidays and was not paid correctly for his holiday pay during his employment with the respondent.

The respondent submits that the complainant commenced employment with the respondent on 17 October 2011 and was made redundant and finished his employment with the respondent on 31 May 2019. The respondent states the fact that the complainant was made redundant is not in dispute as the complainant was paid a total of €9,756 in respect of his years’ service as calculated by the respondent and in line with the claimant’s statutory entitlements.

Preliminary Issue One

While the complainant is claiming that for the whole period of time that he worked for the respondent, he was not paid holiday pay as per the legislation and was not paid Sunday premium in accordance with the industry average, the respondent raises a preliminary point in that the complainant has failed to provide an appropriate timeframe within the wording of his claim. The respondent asserts that the complainant has also failed to word each specific complaint in a way that addresses each of the complaints. It states that the two complaints are identical. The respondent submits that in HSE v McDermott [2014] IEHC 331 Hogan J held:

For the purpose of this limitation period, everything turns, accordingly, on the manner in which the complaint is framed by the employee, if, for example, the employer has been unlawfully making deductions for a three- year period, then provided that the complaint which has been presented relates to a period of six months beginning “on the date of the contravention to which the complaint relates”, the complaint will nonetheless be in time.

It follows therefore, that if an employer has been making deduction X from the monthly salary of the employee since January 2010, a complaint which relates to deductions made from January, 2014 onwards and which is presented to the Rights Commissioner in June, 2014 will still be in time for the purposes of section 6 (4). If on the other hand, the complaint were to have been framed in a different manner, such that it related to the period from January 2010 onwards, it would then have been out of time.

The respondent states that the complainant has framed his claim in a manner unlawful pursuant to the decision in McDermott.

Preliminary Issue Two

The respondent states that the complainant is claiming to have not been paid correctly for his holiday pay or for Sunday premium and is seeking back pay for the past 7.63 years which he has based on his basic pay from 15 October 2011.

The respondent asserts that the Organisation of Working Time Act, 1997 at Section 27 (4) states:

A Rights Commissioner shall not entertain a complaint under this section if it is presented to the Commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

The respondent maintains that as the complainant is claiming that he has not been paid his correct holiday pay or Sunday premium for the past 7.63 years, the claim is outside the prescribed 6-month time limit.

Preliminary Issue Three

The respondent submits that the complainant has brought the same complaint under the Payment of Wages Act, 1991 wherein he is stating that he is owed wages for the past 7.63 years. It states that as per section 6 (4):

A Rights Commissioner shall not entertain a complaint under this section unless it is presented to him within the period of 6 months beginning on the date of the contravention to which the complaint relates or (in a case where the Rights Commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within the period aforesaid) such further period not exceeding 6 months as the Rights Commissioner considers reasonable.

The respondent states that as the complainant is attempting to claim for monies allegedly owed dating back to 2011, the claim falls outside the 6-month period as set out in the legislation.

In conclusion, the respondence states that the complainant was paid his redundancy in accordance with his statutory entitlement.

Complaint under Section 27 of the Organisation of Working Time Act CA-00031026-001

Sunday Premium

The complainant lodged his claims with the WRC on 20 September 2019. He was made redundant on 31 May 2019. Therefore, the cognisable period covered by the within complaints is from 19 March 2019 to 31 May 2019. In relation to the claim in respect of Sunday premium, I note, having examined the complainant’s contract of employment, that it states, “Payment for additional hours worked and a Sunday premium is deemed incorporated into your salary”. In the circumstances therefore and in consideration of the High Court case of Trinity Leisure Holdings Ltd. trading as Trinity City Hotel v Sofia Kolesnik and Natalia Alfimova [2019] IEHC 654, I find that there is no breach by the respondent in respect of the claim in relation to Sunday premium. This claim is not well-founded and therefore fails.

Public Holidays

The cognisable period for the within complaint is from 19 March 2019 to 31 May 2019. I note that two public holidays fall within this period. I find the complainant has established a breach in respect of the legislation in this regard. The complainant is entitled to be paid for the Public Holidays in respect of April 22nd and May 6th 2019.

Holiday pay/Annual leave

While the complainant was requested to provide particulars on this complaint, he failed to do. Accordingly, the complainant has not presented evidence to establish a breach is respect of this legislation, therefore I find that this complaint is not well-founded.

Complaint under Section 6 of the Payment of Wages Act CA-00031026-002

As the complainant has brought the same claim as above under the Payment of Wages Act, 1991, the complainant is not entitled to bring a duplicate claim under two separate pieces of legislation and therefore I find that this complaint is not well-founded.

Complaint under Section 27 of the Organisation of Working Time Act CA-00031026-001

Sunday Premium

I am satisfied that there is no breach in respect of this matter. Accordingly, I find that this complaint is not well-founded and therefore fails.

Public Holidays

I am satisfied that this complaint is well-founded. The complainant is entitled to be paid for the Public Holidays in respect of April 22nd and May 6th   2019.

Holiday Pay/Annual leave

While the complainant was requested to provide particulars on this complaint, he failed to do. Accordingly the complainant has not presented evidence to establish a breach is respect of the legislation in this regard, therefore I find that this complaint is not well-founded.

Complaint under Section 6 of the Payment of Wages Act CA-00031026-002

I find, on the basis of the evidence presented that there is no breach in respect of the Payment of Wages Act. This complaint is not well-founded.

Payment of wages, 6 months’ time limit, Sunday premium, annual leave entitlement, Organisation of Working Time Act, public holidays