ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00032361
Parties:
| Complainant | Respondent |
Parties | Eileen McDermott | Durkins Bar And Restaurant |
Representatives | South Connaught Citizens Information Service CLG | Andrew Durkin |
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-00042886-001 | 05/03/2021 |
Date of Adjudication Hearing: 11/06/2021
Workplace Relations Commission Adjudication Officer: Shay Henry
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
As a result of financial difficulties, the respondent was unable to resume trading after Covid. At the time of the closure of the business the complainant claims she was owed for untaken annual leave. |
Summary of Complainant’s Case:
The complainant, Ms McDermot, was employed as a waitress with the respondent from the 10 Sept 2011 until 9 Sept 2020 for 19 hours per week at a rate of €10.55 per hour. The business temporarily ceased trading owing to the Covid Pandemic on the 16th.March 2020. The complainant wrote to the respondent seeking clarity on her employment status and the future of the business in August 2020 and in reply the respondent informed her that the business was in the process of being sold and he was not in a position to pay her any accrued annual leave which he stated to be €553.90. |
Summary of Respondent’s Case:
On 16th March 2020, the business closed down and trading temporarily ceased due to Covid 19 Pandemic. This followed a very poor period of trading since the previous September and the business was in severe financial difficulty. It was unable to maintain its banking repayments. The respondent had been in active discussions with the bankers to try and achieve a banking restructure. Despite the fact that they were in financial difficulty prior to Covid the respondents were taken by surprise when the bank advised that they would not continue to support the business after the lockdown leaving no option other than to sell the business. This was an extremely distressful and uncertain time not least for the staff and it was the respondents’ hope that some resolution could be found with the bankers. However, the bank refused a refinance and told the respondents to put the pub on the market. Otherwise, in the absence of this they would appoint receivers which would result in the likely loss of all jobs. There was the potential that the business could be sold as a going concern to a similar operator under Transfer of Undertaking. The respondents had no means to pay any redundancy. At the same time, they had hoped that it could possibly be negotiated that the bank would pay these costs out of sales proceeds. The bank took the full proceeds of the sale with the exception of some ongoing maintenance and utility bill costs. In June 2020 an offer was received to purchase the property. There was a period of offers and counter offers before the bank accepted an offer in late August. However, they set out their position regarding costs that they would cover, and it did not include holiday pay, notice or redundancy. Some staff queried the holiday pay amounts. The respondent did a full review over a number of years of leave taken etc and noted some discrepancies in records and reissued the holiday pay amounts to any staff it applied to. Some staff were due more and some less. |
Findings and Conclusions:
I have reviewed the evidence and submissions of both parties and note that there is no dispute in relation to the fact that the complainant was not paid her outstanding leave entitlement on the termination of her employment. Given the period of uncertainty about the future of the business, I am satisfied there is reasonable cause for the delay in making the complaint. While I accept that the cognizable period for calculation of leave can extend to 18 months from the date of receipt of the complaint, I am precluded from extending the time frame to include leave in 2018 – this is consistent with the finding of the High Court in Royal Liver Assurance Ltd. V Macken & Ors [2002] 4 IR 427. The complaint is well founded, and the complainant is entitled to be paid for accrued leave during the years 2019-2020 which I calculate to be €226.85. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
I require the respondent to pay the complainant in respect of the non-payment of annual leave accrued for the years 2019/2020 which I calculate to be €226.85. |
Dated: 01-11-2021
Workplace Relations Commission Adjudication Officer: Shay Henry
Key Words:
Organisation of Working Time Act, non-payment for annual leave accrued |