Complainant

Respondent

Parties

Edyta Bak

SDS Limited t/a Mace Balally

Representatives

  Self

 No appearance

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-00046582-001

06/10/2021

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

CA-00046582-002

06/10/2021

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

CA-00046582-003

06/10/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00046582-004

06/10/2021

The complainant commenced employment with the respondent on 11 November 2019.  She was employed as a cashier and worked 20 hours per week at the rate of €10.10 per hour.  Due to the Covid-19 pandemic the complainant was put on lay-off in March 2020 and told to apply for the Pandemic Unemployment Payment (PUP).  The complainant last worked for the respondent on 14 March 2020. 

The complainant claims she did not receive all her paid annual leave or public holiday entitlements between 11 November 2019 and 14 March 2020.  She also claims she was not compensated for the loss of her annual leave entitlement on leaving employment.  The complainant claims she did not receive a statement in writing of her terms of employment.  The complainant submitted her complaints to the Workplace Relations Commission on 06 October 2021.

The complainant submitted a list of the hours she worked between 11 November 2019 and 14 March 2020.  The total number of hours worked is shown as 357.  The complainant stated she was due 26 hours holidays of which she received only 6 hours.

In her evidence the complainant stated that her contract was for 20 hours per week.  In early February 2020 the complainant was not being allocated the full 20 hours per week and she considered leaving.  Following an exchange of messages with Ms McDonagh the complainant was allocated her full 20 hours. 

In March 2020 the Covid-19 health and safety restrictions were introduced and in order to comply with those restrictions the respondent reduced the working hours of staff.  The last day the complainant worked for the respondent was 14 March 2020.  The complainant was put on lay-off on 22 March 2020 and advised to apply for the Pandemic Unemployment Payment (PUP). 

On 14 May 2020 Ms McDonagh sent a message to the complainant stating that they were taking some staff back and asking if she wanted to return to work the following week. (A copy of the messages exchanged was submitted by the complainant.)   The complainant replied she didn’t have anyone to do homework with her daughter and that she would let Ms McDonagh know when she could organise someone. 

There was no further communication between the complainant and the respondent until September 2021.  The complainant sent a message to Ms McDonagh and Mr Don Sweeney on 06 September 2021 stating she could not continue to work in their shop as she was only available to work in the morning.  The complainant requested payment for 20 hours of annual leave and 8 hours for bank holidays and her last payslip.

The complainant did not receive a reply to her message and so she went to the respondent’s premises on 08 September 2021.  The complainant returned her uniform jumper and spoke with Ms McDonagh about her holiday pay.  The complainant stated that she was told the respondent’s solicitor would contact her about the payment.  After three weeks the complainant received a phone call from Mr Sweeney.  The complainant stated he informed her she had not been an employee since May 2020 when she had replied she didn’t have anyone to do homework with her daughter and could not return to work the next week.

The complainant is claiming payment for 20 hours for accrued annual leave and 8 hours accrued bank holiday.  The complainant also claims she did not receive a statement in writing of her terms of employment.

There was no appearance by or on behalf of the respondent and no submission was received from the respondent.

Having checked the file, I was satisfied that the respondent had been notified of the time and date of the hearing by letter post, to the registered address of the respondent.  I proceeded to hear the complaints in the absence of any representative for the respondent.

CA-00046582-001

Complainant submitted under section 27 of the Organisation of Working Time Act, 1977.

The complainant claims that other than six hours she did not receive her paid annual leave entitlement accrued between 11 November 2019 and 31 March 2020.

An employee’s 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.

The leave year is defined in section 2 of the Act as

 “leave year” means a year beginning on any 1st day of April.

The complainant worked for the respondent in the leave year 01 April 2019 to 31 March 2020.  Her entitlement to paid annual leave was accrued in the leave year 01 April 2019 to 31 March 2020.  The relevant leave year expired on 31 March 2020. 

The Workplace Relations Act, 2015 requires complaints to be presented within certain time limits.  Sections 6 and 8 of the Act state:

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

(7) …

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

As the relevant leave year expired on 31 March 2020 without the complainant being granted paid annual leave the date of contravention is 31 March 2020.  An adjudication officer shall not entertain a complaint referred after the expiration of 6 months beginning on the date of contravention to which the complaint relates, unless satisfied there is reasonable cause to extend this period.  However, the period cannot be extended by more than 6 months.  In this case the complaint was received by the Workplace Relations Commission on 06 October 2021, that is more than 18 months after the date of the contravention to which the complaint relates.  I find the complaint was submitted out of time and I do not have jurisdiction to adjudicate on this complaint.

CA-00046582-002

Complainant submitted under section 27 of the Organisation of Working Time Act, 1977.

The complainant claims she is due payment for 8 hours for public holiday entitlements accrued before 22 March 2020. 

An employee’s entitlement to public holidays is provided for in section 21 of the Act, as follows:

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:

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom

Entitlement to public holidays is separate to the entitlement to annual leave.  It was held by the High Court in Royal Liver Assurance v Macken [2002] 4 IR 427 that where the employer fails to comply with the provisions of section 21 of the Act the date of contravention is the date of the public holiday itself.  The public holidays to which this complaint refers occurred before 22 March 2020.  This complaint was received by the Workplace Relations Commission on 06 October 2021, that is more than 18 months after the date of the contravention.  An adjudication officer shall not entertain a complaint referred after the expiration of 6 months beginning on the date of contravention to which the complaint relates, unless satisfied there is reasonable cause to extend this period.  However, the period cannot be extended by more than 6 months. 

I find the complaint was submitted out of time and I do not have jurisdiction to adjudicate on this complaint.

CA-00046582-003

Complainant submitted under section 27 of the Organisation of Working Time Act, 1977.

The complainant claims she was not compensated for the loss of her annual leave entitlement on leaving employment.  The complainant claims she resigned on 06 September 2021.  However, she was on lay off from 22 March 2020 and had not been in contact with the respondent between 14 May 2020 and 06 September 2021.

An employee’s entitlement to compensation for the loss of annual leave on leaving employment is provided for in section 23 of the Act as follows:

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.

(b) In this subsection—

 "relevant period" means—

(i) in relation to a cessation of employment of an employee to whom subparagraph (i) of paragraph (c) of subsection (1) of section 20 applies, the current leave year,

(ii) in relation to a cessation of employment of an employee to whom subparagraph (ii) of the said paragraph (c) applies, that occurs during the first 6 months of the current leave year—

        (I) the current leave year, and

       (II) the leave year immediately preceding the current leave year,

(iii) in relation to a cessation of employment of an employee to whom subparagraph (iii) of the said paragraph (c) applies, that occurs during the first 12 months of the period of 15 months referred to in the said subparagraph (iii) —

(I)                  the current leave year, and

(II)                the leave year immediately preceding the current leave year, or

(iv) in relation to a cessation of employment of an employee to whom subparagraph (iii) of the said paragraph (c) applies that occurs during the final 3 months of the period of 15 months referred to in the said subparagraph (iii) —

(I)                  the current leave year, and

(II)                the 2 leave years immediately preceding the current leave year.

Section 20 of the Act provides as follows:

Times and pay for annual leave.

20.— (1) The times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements and subject—

(a) to the employer taking into account—

   (i) the need for the employee to reconcile work and any family responsibilities,

  (ii) the opportunities for rest and recreation available to the employee,

(b) to the employer having consulted the employee or the trade union (if any) of which he or she is a member, not later than 1 month before the day on which the annual leave or, as the case may be, the portion thereof concerned is due to commence, and

(c) to the leave being granted—

  (i) within the leave year to which it relates,

 (ii) with the consent of the employee, within the period of 6 months after the end of that leave year, or

 (iii) where the employee—

(I)                  is, due to illness, unable to take all or any part of his or her annual leave during that leave year or the period specified in subparagraph (ii), and

(II)                has provided a certificate of a registered medical practitioner in respect of that illness to his or her employer,

within the period of 15 months after the end of that leave year

Section 23 and section 20 (1)(c) refer to the current leave year when the employee ceased to be employed.  The complainant was laid off on 22 March 2020 and did not return to work before her resignation on 06 September 2021.  Annual leave does not accrue during a period of lay off.  The complainant did not therefore accrue any annual leave in the statutory leave years 01 April 2020 to 31 March 2021 or 01 April 2021 to 06 September 2021.  As the complainant did not accrue annual leave entitlements between 22 March 2020 and 06 September 2021, I find the claim for compensation for the loss of annual leave on ceasing employment is not well founded.

CA-00046582-004

Complaint submitted under section 7 of the Terms of Employment (Information) Act, 1994.

The complainant claims she did not receive a statement in writing of her terms of employment.  The complainant was a credible witness, and she provided a copy of messages exchanged with Ms McDonagh over the course of her employment.  In addition, the complainant submitted a carefully prepared account of the hours she worked.  I am satisfied that had the complainant received a statement in writing of her terms of employment she would have been able to provide a copy of same.  Based on the uncontested evidence of the complainant, I find a statement of terms of employment was not provided to the complainant.

Section 3(1) of the Act provides that an employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the particulars of the terms of employment, as set out in that section.  This section is clear that an employer shall provide the statement within two months of the start of the employment.  Where an employer fails to provide the required statement, an employee may submit a complaint to the Workplace Relations Commission under section 7(2) of the Act, which permits an adjudication officer to require an employer to issue or amend a statement or award financial redress.  It was held in An Animal Carer v A Charity ADJ-00009820 that “the multiplicity of interventions allowed by section 7(2) shows that the contravention of section 3 is a subsisting contravention that endures so long after the initial two-month period the employee remains an employee not in possession of a statement.”  I am satisfied that the failure of an employer to provide a statement in writing of the terms of employment is a contravention of the Act that subsists throughout the employment relationship.

The Act transposes Directive 91/533/EC (the” Written Statement” Directive) into national law. The Directive recites Article 117 of the Treaty and point 9 of the Community Charter of Fundamental Social Rights of Workers.  Article 2 of the Directive provides that an employer shall notify the employee of certain essential aspect of the employment relationship and does not limit this requirement to any time period within the employment relationship.

Considering section 3(1) of the Act and Article 2 of the Directive together confirms that the obligation to provide the statement of terms of employment subsists throughout the employment relationship. 

I have found that the complainant was not provided with a statement in writing of her terms of employment.  The failure of the respondent to provide a statement, as required, is a contravention that subsisted throughout the employment relationship.  Where no statement is provided at any stage during the period of employment and the employment comes to an end, the employee may refer a complaint to the Workplace Relations Commission within six months of the last day of contravention, i.e., the last day of employment.  The complainant submitted notice of her resignation to the respondent on 06 September 2021 and referred her complaint to the Workplace Relations Commission on 06 October 2021.  Therefore, the complaint was received within the six-month time limit.

I note the complainant remained on lay-off until her resignation.  I note there was no communication between the respondent and the complainant between May 2020 and September 2021, when the complainant resigned. 

I find the respondent contravened section 3(1) of the Act by failing to provide the complainant with a statement in writing of her terms of employment.  I find the complaint is well founded.  Considering all the circumstances of this case I believe it is just and equitable to award the complainant redress compensation of €404, the equivalent of two weeks’ pay.

CA-00046582-001

Complainant submitted under section 27 of the Organisation of Working Time Act, 1977.

The complainant claims that, other than six hours, she did not receive her paid annual leave entitlement accrued between 11 November 2019 and 31 March 2020. 

This complaint was received by the Workplace Relations Commission on 06 October 2021, that is more than 18 months after the date of the contravention to which the complaint relates.  I find the complaint was submitted out of time and I do not have jurisdiction to adjudicate on this complaint.

CA-00046582-002

Complainant submitted under section 27 of the Organisation of Working Time Act, 1977.

The complainant claims she is due payment for 8 hours for public holiday entitlements accrued before 22 March 2020. 

This complaint was received by the Workplace Relations Commission on 06 October 2021, that is more than 18 months after the date of the contravention to which the complaint relates.  I find the complaint was submitted out of time and I do not have jurisdiction to adjudicate on this complaint.

CA-00046582-003

Complainant submitted under section 27 of the Organisation of Working Time Act, 1977.

The complainant claims she was not compensated for the loss of her annual leave entitlement on leaving employment.  The complainant claims she resigned on 06 September 2021.  However, she was on lay off from 22 March 2020 and had not been in contact with the respondent between 14 May 2020 and 06 September 2021.

Annual leave does not accrue during a period of lay off.  The complainant did not therefore accrue any annual leave in the statutory leave years 01 April 2020 to 31 March 2021 or 01 April 2021 to 06 September 2021.  As the complainant did not accrue annual leave entitlements between 22 March 2020 and 06 September 2021, I find the claim for compensation for the loss of annual leave on ceasing employment is not well founded.

CA-00046582-004

Complaint submitted under section 7 of the Terms of Employment (Information) Act, 1994.

I find the respondent contravened section 3(1) of the Act by failing to provide the complainant with a statement in writing of her terms of employment.  I find the complaint is well founded.  Considering all the circumstances of this case I believe it is just and equitable to award the complainant redress compensation of €404, the equivalent of two weeks’ pay.  I direct the respondent to pay to the complainant redress of €404.

Annual Leave

Public Holiday

Time Limits

Terms of Employment