ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00030079

Parties:

	Complainant	Respondent
Parties	Laura Kilduff	The Brow Boutique Limited

Representatives

N/A

Complaint(s):

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-00040060-001	24/09/2020
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 15 of the European Communities (Organisation of Working Time) (Mobile Staff in Civil Aviation) Regulations 2006 - S.I. No. 507 of 2012	CA-00040060-002	24/09/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00040060-003	24/09/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00040060-004	24/09/2020
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946	CA-00040060-005	24/09/2020

Date of Adjudication Hearing: 05/08/2021

Workplace Relations Commission Adjudication Officer: Breiffni O'Neill

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.

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.

At the commencement of the hearing, the requirements of the Supreme Court judgement, Zalewski v Ireland and Others [2021] IESC 24, were presented to the parties.

There were no issues with a public hearing or the names of the parties potentially being in the public arena.

As there was a direct conflict of evidence, I explained to the parties that they had to swear an oath or make an affirmation. The Complainant chose to affirm while the Respondent’s witness swore the Christian Oath.

Background:

The Complainant worked as a Brow Artist with the Respondent from May 2018 to 4 September 2020. She worked at least 20 hours per week and was paid €11 per hour. She is claiming that she was not paid either her full annual leave or public holiday entitlements.

Summary of Complainant’s Case:

The Complainant worked as a Brow Artist with the Respondent from May 2018 to 4 September 2020. She worked at least 20 hours per week and was paid €11 per hour. On occasion, she worked more than 20 hours per week depending on business requirements.

She claimed that she did not receive her full annual leave entitlements from 1 January 2020 to 4 September 2020, the day on which her employment ended, and that she was also not paid in respect of any of her public holiday entitlements from 25 December 2019 to 4 September 2020 inclusive.

Summary of Respondent’s Case:

The Respondent stated that the Company operated a leave year from 1 January to 31 December each year and that as the Complainant had taken her holidays in February 2020, she had received her full annual leave entitlements.

The Respondent disputed that the Complainant did not receive her public holiday entitlements in the Christmas 2019/2020 year period and stated that she was advised that there was no requirement to pay public holidays during the Covid lockdown when the businesses were closed.

Findings and Conclusions:

Preliminary Point:

Given that the Respondent’s witness clarified that the correct legal name of the entity is “The Brow Boutique Limited” and not “The Brow Boutique” as listed on the complaint form, I changed the name of the Respondent with her consent.

FINDINGS:

Nature of claim

The Complainant clarified at the outset that her claim related only to:

(i) a complaint in respect of unpaid annual leave entitlements from 1 January 2020 to 4 September 2020, the day on which her employment ended, given that she had received her full annual leave entitlement prior to this

(ii) a complaint in respect of all public holiday entitlements from 25 December 2019 to 4 September 2020 inclusive

Given that these complaints fall under CA-00040060-001 and CA-00040060-003 respectively, the Complainant withdrew her other four complaints.

CA-00040060-001:

The Complainant stated that she did not receive all of her annual leave entitlements in respect of the period from 1 January 2020 to 4 September 2020

THE LAW:

When examining this complaint, I note that the ‘leave year’ is defined in Section 2 of the Act as a year beginning on 1 April. Given that the complaint was referred on 24 September 2020 and relates to alleged breaches in 2 leave years, the relevant years in this claim are 1 April 2019 to 31 March 2020 as well as the leave year beginning 1 April 2020.

Section 19 (1) of the Organisation of Working Time Act states that:

“an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

( a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

( b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

( c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks)

FINDINGS:

I note that both parties agree that the Complainant received 2 days annual leave in February 2020.

The Complainant also made an affirmation that she worked 81.5 hours in January, 104 hours in February as well as 87.5 hours in the period to 19 March. While the Respondent swore on oath that the Complainant did not work these hours, given the absence of any written records from her to dispute this, which is required under legislation, I find that the Complainant should have been paid 21.92 hours in annual leave during this period (274 hours * 8%). When I deduct the 20 hours that the Complainant was paid in February, I find that she is due to be paid an additional 1.92 hours in respect of annual leave in the period from 1 January to 19 March 2020.

I also note that both parties agreed that the Complainant’s workplace was closed due to the Covid lockdown from 19 March 2020 to 29 June 2020. Given that the Complainant therefore did not work for any of this period, she is not entitled to be paid any annual leave.

When the shop re-opened on 29 June 2020, I note the Complainant’s assertion that she worked a minimum of 20 hours per week for the ten-week period until 4 September 2020. While she stated that she may have worked more than this on some of those weeks, no evidence was presented by her to me in respect of any such additional hours worked in the period.

Given that the Respondent’s witness was also unable to provide any details or records of the hours the Complainant worked, I find that she worked 200 hours from 29 June to 4 September and should therefore have been paid 16 hours holidays (200 hours * 8%) in respect of this ten week period.

CA-00040060-003:

THE LAW

Section 21 of the Act sets out the entitlement in respect of Public Holidays and the Third Schedule deals with the exceptions mentioned in S. 21(5). Unlike a complaint for unpaid annual leave, which must be submitted within six months of the end of the statutory annual leave year, 1 April to 31 March, a complaint relating to public holidays must be submitted within six months of the date of the contravention of the public holiday entitlement.

FINDINGS

Given that the complaint was referred to the WRC on 24 September 2020, I cannot consider any breaches prior to 25 March 2020 and therefore find that the complaints in respect of the four unpaid public holidays on December 25 and 26 2019, January 1 2020 and March 17 2020 are out of time.

Despite the Respondent’s assertions to the contrary, there is an entitlement to payment for public holidays occurring within the first 13 weeks of lay-off and based on the evidence presented to me, I find that the Complainant did not receive payment for 4 public holidays that fell within 6 months of the date of contravention.

Specifically, the Complainant is entitled to payment for the three public holidays that fell on Easter Monday, May and June public holidays. I also find that she did not receive any payment for her public holiday entitlement in respect of the August public holiday.

Given that Section 23(2) provides for payment on termination of employment of public holiday entitlements, I find that the complaint in respect of non-payment for four public holidays at the date of termination is well founded. Specifically, given that the Complainant worked part time doing 2 days per week for 10 hours per day, she is entitled to be paid four hours in respect of each public holiday which is a total of 16 hours.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00040060-001: I find that this complaint is well founded and that the Complainant is entitled to be paid €197.12 in respect of her unpaid annual leave of 17.92 hours.

CA-00040060-002: This complaint was withdrawn for the reasons outlined above

CA-00040060-003: I find that this complaint is well founded and that the Complainant is entitled to be paid €176 in respect of her unpaid holidays.

CA-00040060-004: This complaint was withdrawn for the reasons outlined above

CA-00040060-005: This complaint was withdrawn for the reasons outlined above

CA-00040060-006: This complaint was withdrawn for the reasons outlined above

Dated: 11th August 2021

Workplace Relations Commission Adjudication Officer: Breiffni O'Neill

Key Words:

Annual leave; public holidays