Complainant

Respondent

Anonymised Parties

Home Care Worker/Housekeeper

Family Member

Representatives

Breege O'Hora Citizen Information Service

Self

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-00038925-002

28/07/2020

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

CA-00038925-003

28/07/2020

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

CA-00038925-005

28/07/2020

Two issues were submitted for Decision. The first concerned payment for jury duty on dates in January and February 2020. The amount of this claim was €360. This claim was conceded at the hearing by the Respondent and is reflected in the Decision under the Payments of Wages Act 1991.

The second issue concerned the calculation of holiday and public holiday pay during the period of the employment and the payment for those leave entitlements on termination of the employment. Details of the essentials of the employment relationship are contained in the summary of her case.

At the hearing the person named by the Complainant accepted that he was the employer.

This was a virtual hearing, held remotely.

She was summonsed to jury duty and attended for 6 days. The complaint under the Payment of Wages Act 1991, is that under Section 4 of the Juries Act 1976 she must be paid by her employer. The amount claimed is €360.

On the matter of holiday and public holiday pay, she said that for the duration of her employment she did not receive holiday leave or public holiday pay. On termination her employment, she received an amount of €776.57. There was no explanation for this amount and no payslip. She took it that the payment was for holiday pay. Her representative calculated that she was underpaid in terms of both holiday pay and public holiday pay as follows:

2.72 weeks holiday pay for the leave year August 2018 to 31 March 2019

4 weeks holiday pay for the leave year April 2019 to February 2020

Payment for eleven Public Holidays

The payment of €776 on termination is not the full payment for leave during the employment.

During the hearing, the Complainant representative cited the case of Sash Windows v King in support of the complaint on the basis that the Decision meant that a time limit could not be placed on the payments due to the Complainant, that she was entitled to the full value of her holiday pay in circumstances where she had no opportunity to take the leave as she was expected to be available to the Respondent on every one of her five days.

At the hearing, the Complainant agreed that she was not required to work on Christmas Day.

The representative wrote to the Respondent on 6 May 2020 and 10th June 2020 regarding the payments claimed but received no reply and then referred the complaints to the WRC.

The dates of employment and rates of pay were not disputed. The Complainant did a good job and there were no issues regarding her work performance. He had tried to resolve the complaints with the Complainant at the hearing, but she would not accept his offer.

 On the complaint regarding non-payment for Jury Service, the Respondent conceded the payments were due. The problem at the time was the way the Complainant went about it-giving no notice of being summonsed to Jury Duty.

On the matter of leave, it was confirmed that the €776 paid on termination was holiday pay. The Respondent said that during her employment, the Complainant did not ask for leave or pay for Public Holiday Pay. She was not forced to work [instead of taking leave]. On termination, she attended the family business and read and signed a statement that she had no grievances with the employer and accepted the envelope with the €776. Nothing was said about holiday pay and as far as he was concerned, all matters were settled. The Complainant definitely had Christmas Day off and he believes she would also have been on a paid day off on December 26th as the family were there and could look after his relative.

Asked if there was a written statement of employment, the Respondent said yes-that he used the one from his own business. Asked what it said about holidays and holiday pay-he read from the statement which referred to a composite hourly rate of pay which included Sunday Premium and Holiday Pay.

The complaint regarding non-payment for Jury Duty is settled and requires only a decision.

Regarding the complaints of non-payment of holiday and public holiday pay the preliminary question is whether the statement provided to the Complainant on termination represents what is known as a waiver such that she was debarred from bringing complaints against her former employer. Without labouring the point on legal precedents and arguments regarding the status of a waiver, circumstances such as those described by the Respondent could not reach the threshold required to rely on a such an agreement as a basis for denying the Complainant the right to pursue employment rights-based complaints. She had no foresight of the document, it referred only to grievances and not employment rights, there was no opportunity to take independent advice, she was not informed of the value or basis for the payment she received. In a nutshell, she had no idea what she was signing for or what she was signing away.

The document signed by the Complainant on termination to the effect that she had no grievances against her former employer could not be classified as valid waiver. Based on this conclusion, the Complainant was entitled to bring Complaints for failure to adhere to her statutory rights and to have those complaints decided.

Annual Leave

On the substance of the complaints, there is no dispute that the Complainant did not have paid annual leave during her employment. Neither can it be disputed that the sum of €776 paid on termination of the employment did not amount to what she would have been entitled to by way of paid annual leave entitlements during the course of her employment, had she accessed those entitlements.

The issue at the heart of this aspect of case is how much of the period of the Complainants employment is to be taken into account when calculating her entitlements on termination.

Section 20(1) of the Organisation of Working Time Act 1997:

The times at which annual leave is granted to an employee shall be determined by his or her employer…

From the wording of this Section, it follows that the employer is responsible for overseeing and implementing the provisions of the leave arrangements for an employee. The legislation confers certain rights on the employer to determine the timing and duration of the leave, with due regard to the obligation to ensure that the family work life balances and responsibilities are met allied to the opportunities for rest [Section 20(1) a of the Act refers]. From the plain reading of the terms of Section 20(1) any contention that the Complainant in this case was under an obligation to ask for her leave while in the employment and that her failure to do so removes the Respondents obligations under the Act, is rejected.

In this particular case, the nature and environment of the role and conditions of the job are factors to be considered. At the hearing the Respondent made it clear that the Complainants services were required on any days when the family were not available due to work commitments in their own business. In effect this meant five days a week, including every weekend without exception. Then there is the conduct of the Complainant when the Complainant did try to take time off-for statutory jury duty-and the Respondent failed to pay her. While he acknowledged this wrongdoing at the hearing, he ignored two written efforts by the Complainants representative to resolve the matter. It is not unreasonable to conclude that this was a working arrangement and a working environment with a level of expectation on the part of the Respondent such that there was nothing to indicate or suggest that he would facilitate paid leave of four weeks per annum.

The Respondents reference to the statement of terms of employment (denied as received) containing a rolled-up rate of pay is instructive. On the one hand he is endeavouring to hold the Complainant responsible for not asking for her leave and at the same time claiming that she was covered by terms of employment which state that her rate of pay included her holiday pay. On this basis it is difficult to see what paid time off the Complainant could have sought, if his view was, he had already paid for that leave in the hourly rate of pay. On the point of a rolled-up rate of pay, such an arrangement or stipulation by an employer is unlawful and represents a breach of the Organisation of Working Times Act. Neither is an employee entitled to contract themselves into such an arrangement. Such an arrangement acts to deprive the employee of paid leave during an employment relationship and to defeat the intentions of the Directive and the Act. It is this issue, the failure to provide paid leave during the entirety of an employment relationship and the payment then due to the employee on termination which was the subject of the Decision cited by the Complainants representative at the hearing-C-214/16 The Sash Window Workshop Ltd and Conley King. In that case, the Complainant was claiming the value of his unpaid leave over a period in excess of thirteen years. That period far exceeded the carry forward period allowed for under the UK enactment of the OWT of the Directives of 1997 and 2003 or the relevant provisions of the enactment into Irish Law.

As it happens in this case it is sufficient to rely on the terms of the Organisation of Working Time Act 1997, to determine the entitlements of the Complainant in this case on termination of her employment. Section 2-(1) states:

‘Where-

(a)an employee ceases to be employed, and

(b) the whole or any portion of the annual leave in respect of the current leave year or, in case the cesser of employment occurs during the first half of that year, in respect of that year, the previous year or both those years, remains to be granted to the employee,

the employee shall as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay calculated at the normal weekly rate of pay…. that he or she would have received had he or she been granted that annual leave.’

Given that the period of the employment relationship and therefore the complaint is concerned with a complaint of unpaid annual leave in the first leave year of employment and the first six months of the second year of employment, the terms of Section 22(1) apply in this instance. It follows that the Complainant was and is entitled to payment for the full amount of her untaken annual leave on termination of her employment, less the amount already paid. Taking the full circumstances of the case, compensation is also justified. This may read as a personal type of employment contract only. However, the Respondent did have a business. He had, or ought to have had access to legal and professional advice. He relied on an unlawful contract in breach of the Organisation of Working Time Act and failed in his obligations to the Complainant under Section 20 of Act in failing to provide the Complainant with paid leave for social or health and safety reasons. There are significant breaches of the OWT in this case and some compensation in addition to the unpaid entitlements is justified.

Public Holiday Pay.

 Accepting that the Complainant was off work on Christmas Day 2019, as the day fell on her rostered day off-Wednesday-she was entitled to an additional day pay that week. Similarly, she either worked on her rostered day on December 26th or she was unpaid as it fell on her rostered day off.

The complaint for non-payment of public holiday pay is upheld-in respect of the six months prior to the termination of employment-which was from 17 August 2019 until 16 February 2020. This period includes four days not treated as public holidays by her employer and remunerated accordingly.

Payment of Wages Act 1991 CA-00038925-005

The complaint of an unlawful withholding of wages in respect of jury service is well founded. The Respondent is to pay the Complainant €360 in respect of this complaint.

Organisation of Working Time Act 1997 CA-00038925-002,003

The complaints regarding the failure to provide paid annual leave and public holiday pay are well founded. The Respondent is to pay the Complainant €1264 in payments for annual leave and public holiday pay owed on termination and €776 in compensation for the breaches of the Organisation of Working Time Act 1997,as amended.

Non - Payment for Jury Service; Non-payment of holiday and public holiday pay accrued during the employment/on termination