ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00029199
Parties:
| Complainant | Respondent |
Parties | Angie Beley Flores Alfaro | Canale Food And Beverage Ltd |
Representatives | Angie Beley Flores Alfaro | No appearance |
Complaints:
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-00038934-001 | 28/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00038934-002 | 28/07/2020 |
Date of Adjudication Hearing: 13/08/2021
Workplace Relations Commission Adjudication Officer: Maria Kelly
Procedure:
At the time the hearing was scheduled to begin there was no appearance by or on behalf of the respondent. I checked that the respondent was on notice, at its registered address, of the date and time of the hearing. I noted from the case file that the respondent was notified of the date and time of the hearing by letter and e-mail, dated 01 July 2021. The letter was sent by registered mail to the registered address of the respondent company. I am satisfied that the respondent was notified of the date and time of the hearing. Having waited for fifteen minutes after the time the hearing was due to commence I proceeded to hear the complainant’s complaints in the absence of the respondent.
The complainant had requested that she have the assistance of a translator. Ms Piemonte attended the hearing to provide translation services. She indicated she was willing to swear an oath to well and truly interpret all matters required of her to the best of her skill and understanding. I duly administered the oath.
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 complainant an opportunity to be heard by me and to present to me any evidence relevant to her complaints.
The matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the Workplace Relations Commission as a body empowered to hold remote hearings.
I explained to the complainant the procedural changes arising from the decision of the Supreme Court in Zalewski v Adjudication Officer & ors [2021] IESC 24 and gave her the opportunity to consider the changes. The complainant indicated she understood the procedural changes and wished to proceed with the hearing. The complainant gave her evidence on oath, which I administered before she presented her complaints.
Background:
The complainant was employed as a cook by the respondent company from 17 August 2019 to 16 March 2020. She usually worked 30 hours per week. Her rate of pay was €12 per hour. The complaints include non-payment of wages for six weeks worked in February / March 2020, no holidays provided or paid for on termination of employment and no compensation for five public holidays. The complainant submitted her complaints to the Workplace Relations Commission on 28 July 2020. |
Summary of Complainant’s Case:
The complainant commenced working as a cook for the respondent on 17 August 2019. She was not provided with a written contract of employment. She usually worked a 30 hour week, but the hours could vary depending on the level of activity in the business. The complainant provided copies of the staff roster showing her hours worked between January and March 2020. The restaurant closed on 16 March 2020 due to the COVID-19 pandemic. At the time the restaurant closed the complainant was owed six weeks’ wages. The complainant was in contact with the respondent on numerous occasions to try to find out when she would be paid. Initially the respondent replied to messages, but all contact ceased after June 2020. Hours Worked The complainant worked the following hours between 03 February and 15 March 2020: 03 Feb to 09 Feb 30.5 hours 10 Feb to 16 Feb 22 hours 17 Feb to 23 Feb 32 hours 24 Feb to 01 Mar 20 hours 02 Mar to 08 Mar 35.5 hours 09 Mar to 15 Mar 27 hours The complainant claims payment is due to her for 167 hours worked between 03 February and 15 March 2020. Holidays The complainant did not receive any holidays during her period of employment, 17 August 2019 to 16 March 2020. She was not paid for outstanding holidays when her employment was terminated. The monetary value of the holiday pay claim on the claim form submitted is €620.00. Public Holidays The complainant claims she was not given or compensated for five public holidays that occurred during her period of employment. The public holidays fell on 28 October 2019, 25 and 26 December 2019, 01 January 2020, and 17 March 2020. The complainant claims payment is due to her for the five public holidays. The complainant sought payment from the respondent and was initially promised payment would be made after the restaurant/shop closed. However, after June 2020 the respondent ceased communication and no payments were made. The complainant submitted her complaints to the Workplace Relations Commission on 28 July 2020. |
Summary of Respondent’s Case:
There was no appearance by or on behalf of the respondent. The respondent did not make a submission to contradict the claims submitted. |
Findings and Conclusions:
CA-00038934-001 Complaint under Section 6 of the Payment of Wages Act, 1991. The complainant, through the interpreter, gave a clear account of her claims and her attempts to obtain payment from the respondent. She provided me with copies of the staff roster on which the hours she worked were recorded. The respondent had not provided pay slips to the complainant but instead provided an extract from a bank statement when payments were made. The complainant was paid up to 02 February 2020. The complainant’s evidence was not contradicted as the respondent failed to attend the hearing. The complaint was submitted on 28 July 2020. I find as fact that the complainant did not receive the wages that were properly due to her for the period 03 February to 16 March 2020. The wages were due to be paid within the six months prior to the date the complainant was received by the Workplace Relations Commission and therefore I have jurisdiction to adjudicate on the complaint. Based on the uncontested evidence of the complainant I find that the complaint is well founded. The complainant is due payment of €2,004.00 being the wages due for 167 hours worked at the rate of €12 per hour. Annual Leave CA-00038934-002 Complaint under section 27 of the Organisation of Working Time Act, 1997. The complainant’s claim in respect of holidays was contained in the narrative of the complaint form. I have created a separate complaint number CA-00038934-002 for a complaint under section 27 of the Organisation of Working Time Act. The complainant stated she was not given any holidays during the full period of her employment. She was in her thirty first week of work when her employment was terminated. She was not paid for outstanding annual leave when her employment was terminated. Entitlement to paid annual leave is provided for in section 19 of the Act as follows: 19.— (1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), 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): Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater. I find the complainant did not receive any paid annual leave during her employment. An employee who has outstanding annual leave due to them at the termination of employment is entitled to compensation as provided in section 23 of the Act as follows: Compensation on cesser of employment. 23.— (1) (a) Where— (i) an employee ceases to be employed, and (ii) the whole or any portion of the annual leave in respect of the relevant period 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 or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave. The complaint was submitted to the Workplace Relations Commission within six months of the date of termination of employment. Based on the uncontested evidence of the complainant I find she was not compensated for the loss of annual leave when her employment was terminated. I find the complainant is entitled to compensation equal to 2.4 weeks wages calculated at 30 hours per week at a rate of €12 per hour, a total of €864.00 gross. Public Holidays The complainant claims she did not receive her public holiday entitlement for the public holidays that fell on 28 October 2019, 25 and 26 December 2019, 01 January 2020 and 17 March 2020. Public holiday entitlements are provided for in section 21 of the Act as follows: Entitlement in respect of public holidays. 21.— (1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely— (a) a paid day off on that day, (b) a paid day off within a month of that day, (c) an additional day of annual leave, (d) an additional day’s pay: Complaints about public holiday entitlements must be submitted to the Workplace Relations Commission within six months beginning on the date of the contravention to which the complaint relates. (Section 41(6) of the Workplace Relations Act, 2015). In Royal Liver Assurance v Macken [2002] 4 IR 427 Lavan J held that where an employer failed to give a paid day off or an additional day’s pay for a public holiday the date of contravention is the date of the public holiday itself. The complainant submitted her complaints on 28 July 2020. Therefore, her complaints relating to 28 October 2019, 25 and 26 December 2019 and 01 January 2020 were made outside the six month time limit. Consequently, I do not have jurisdiction to adjudicate on these complaints. The complainant also claimed for the public holiday that fell the day after her employment was terminated, that is 17 March 2020. Section 23(2) of the Act provides the following: 23 (2) Where— (a) an employee ceases to be employed during the week ending on the day before a public holiday, and (b) the employee has worked for his or her employer during the 4 weeks preceding that week, the employee shall, as compensation for the loss of his or her entitlements under section 21 in respect of the said public holiday, be paid by his or her employer an amount equal to an additional day’s pay calculated at the appropriate daily rate. This complaint was received within six months of the date of the public holiday and the complainant provided copies of the staff roster showing she had worked for the respondent in the four weeks preceding the date of the public holiday. I find this complaint is well founded and the complainant is entitled to compensation for the public holiday that fell on 17 March 2020. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00038934-001 Complaint under Section 6 of the Payment of Wages Act, 1991. Based on the uncontested evidence of the complainant I find that the complaint is well founded. I direct the respondent to pay the complainant €2,004.00 gross, being the wages due for 167 hours worked at the rate of €12 per hour. CA-00038934-002 Complaint under section 27 of the Organisation of Working Time Act, 1997. Annual Leave The complaint was submitted to the Workplace Relations Commission within six months of the date of termination of employment. Based on the uncontested evidence of the complainant I find she was not compensated for the loss of annual leave when her employment was terminated. I direct the respondent to pay the complainant compensation of €864.00 gross, being equal of 2.4 weeks’ wages calculated at 30 hours per week at a rate of €12 per hour. Public Holidays The complainant claims she did not receive her public holiday entitlement for the public holidays that fell on 28 October 2019, 25 and 26 December 2019 and 01 January 2020. The complaints were submitted on 28 July 2020. Therefore, the complaints were submitted outside the relevant six month time limit. Consequently, I do not have jurisdiction to adjudicate on these complaints. The complainant also claimed for the public holiday that fell the day after her employment was terminated, that is 17 March 2020. This complaint was received within six months of the date of the public holiday and the complainant provided copies of the staff roster showing she had worked for the respondent in the four weeks preceding the date of the public holiday. I find this complaint is well founded and the complainant is entitled to compensation for the public holiday on 17 March 2020. I direct the respondent to pay the complainant compensation of €72.00 gross being equal to six hours at the rate of €12 per hour. |
Dated: 30-09-21
Workplace Relations Commission Adjudication Officer: Maria Kelly
Key Words:
Unpaid wages Unpaid annual leave Public holiday compensation Time limit to submit complaints |