Complainant

Respondent

Parties

Mary  Kennedy

 Brightnwhite Limited

Complainant

Respondent

Anonymised Parties

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Representatives

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-00048475-001

01/02/2022

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

CA-00048475-002

01/02/2022

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

CA-00048475-003

01/02/2022

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

CA-00048475-004

01/02/2022

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

CA-00048475-005

01/02/2022

The complainant submitted claims under the Payment of Wages Act and the Organisation of Working Time Act.  The claims were submitted on the 1st of February 2022 therefore the cognizable time period of the complaints dates from the 2nd of August 2021 to the 1st of February 2022.

These matters were heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. 359 of 2020, which designates the WRC as a body empowered to hold remote hearings.  

At the adjudication hearing, the parties were advised that, in accordance with the Workplace Relations (Miscellaneous Provisions) Act 2021, hearings before the Workplace Relations Commission are now held in public and, in most cases, decisions are no longer anonymised.  The parties are named in the heading of the decision.

The respondent advised the Commission prior to the hearing and again at the hearing that the correct legal entity was Brightnwhite Limited and advised that the name of the respondent should be amended to reflect this.  The complainant at the hearing did not dispute this and so I have amended the name to Brightnwhite Limited. 

The parties were also advised that the Workplace Relations (Miscellaneous Provisions) Act 2021 grants Adjudication Officers the power to administer an oath or affirmation.  All participants who gave evidence were sworn in under oath or affirmation.

The complainant submits that

The respondent  has not paid her or has paid less than the amount due to her.

She did not receive her paid holiday/annua[ leave entitlement

She has not received her Public Holiday entitlements

She was not compensated, for the loss of her annual leave entitlement on leaving

She was not compensated, for her Public holiday entitlement on leaving

The respondent submits that

The complainant has received all monies due to her.  

The complainant was always paid her Holiday entitlements.

The complainant was always paid her Public Holiday entitlements

The complainant  was fully paid up to her last payment on the 20th March 2020

The complainant was fully paid her public holiday entitlement to the 20th March 2020

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

CA-00048475-001

01/02/2022

The Act at Section 5(6) provides as follows:

5(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

Subsection (6)(a) of section 5 of the Act provides, in effect, that where the total amount of wages properly payable to an employee is not paid, the deficiency or non-payment is to be regarded as a deduction.    

The complainant in her claim form did not specify the amount she claims to be owed in  unpaid wages.  The complainant submits that she had been employed by the respondent and working 15 hours per week until 13th of March 2020 when she went on the Covid PUP payment which was supplemented by her disability allowance.

The complainant submits that she requested to return to work in December 2021 but that the respondent told her that he would discuss it with her in the New Year and that no further discussion had taken place up to the date of the complaint submission on 1st of February 2022.  The complainant submit s that she is entitled to a redundancy but she has made no claim under the redundancy payments act. 

The respondent advised the hearing that there was no redundancy and that the complainant is still employed by them but that she has not attended work since March 2020 and has been in receipt of the Covid unemployment payment since then.

The respondent advised the hearing that the complainant had ceased work on a temporary basis on 13th of March 2020 and requested that she be allowed to claim the Covid payment and the respondent agreed.  This commenced in March 2020.  The complainant submits that she was not brought back to work after this and remained on the Covid payment during the cognisable period of the claim which she submitted on the 1st of February 2022. 

The respondent advised the hearing that he had over the 2 year period had 3 conversations with the complainant and on each occasion she had indicated that she was happy to be in receipt of the Covid payment and enhanced by disability support.  The respondent advised the hearing that he had at the end of 2021 received a text message from the complainant stating that she wished to return to work but when he spoke to her she made it clear that she was not in a position to return to work.   The respondent advised the hearing that the complainant in her most recent conversation with him had stated that she was a heart attack waiting to happen and that she would require surgery in the future due to a Calcium build up in her bones.  The respondent added that he had agreed that he would not be asking her to return to work until she was fit to do so.  The respondent stated that he was then shocked to receive notice that she was now asking for redundancy.   The respondent advised the hearing that he had never discussed the possibility of redundancy with the complainant as her position was not redundant and remained open for her to return to.  

The complainant at the hearing did not clarify how much she felt she was owed under the payment of wages act and what if any deduction had been made.

 Accordingly based on the totality of the evidence adduced I declare this claim to be not well founded.

I declare this claim to be not well founded.

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

CA-00048475-002

01/02/2022

Section 19 of the Organisation of Working Time Act, 1997 stipulates that:

(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.”

This claim relates to an allegation that the complainant did not receive her paid holiday/annual leave entitlement.

Both parties agree that the complainant had worked 15 hours pw up to 13th of March 2020 when she went on the Covid PUP payment which was supplemented by her disability allowance.

The complainant at the hearing did not clarify how many days holidays she was owed but stated that she had not received holiday pay for holidays accrued during the time she was on the Covid wage payment.

The complainant submits that she requested to return to work in December 2021 but that the respondent told her that he would discuss it with her in the New Year and that no further discussion had taken place up to the date of the complaint submission on 1st of February 2022.  The complainant submits that she is entitled to a redundancy but she has made no claim under the redundancy payments act. 

The respondent advised the hearing that there was no redundancy and that the complainant is still employed by them and on their books as an employee but that she has not attended work since March 2020 and has been in receipt of the Covid unemployment payment since then.

The respondent advised the hearing that the complainant had ceased work on a temporary basis on 13th of March 2020 and requested that she be allowed to claim the Covid wage assistance and the respondent agreed.  This commenced in March 2020.  The complainant submits that she was not brought back to work after this and remained on the Covid payment during the cognisable period of the claim which she submitted on the 1st of February 2022. 

The complainant submitted her claim on the 1st of February 2022 therefore the cognizable time period of the complaints dates from the 2nd of August 2021 to the 1st of February 2022.  The complainant advised the hearing that she remained on the Covid payment and disability allowance until April 2022.    Accordingly it is clear that the complainant was in receipt of the Covid PUP payment for the cognisable period of the complaint and thus did not accrue Annual leave during this time.

Accordingly based on the totality of the evidence adduced I declare this claim to be not well founded.

Accordingly based on the totality of the evidence adduced I declare this claim to be not well founded.

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

CA-00048475-003

01/02/2022

This claim related to an allegation that the complainant did not receive her Public holiday entitlements. 

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.

The complainant submits that she had been employed by the respondent and working 15 hours per week until 13th of March 2020 when she went on the Covid PUP payment which was supplemented by her disability allowance.

The respondent advised the hearing that the complainant had ceased work on a temporary basis on 13th of March 2020 and requested that she be allowed to claim the Covid wage assistance and the respondent agreed.  This commenced in March 2020.  Both parties agree that the complainant had not returned to work and remained on the Covid payment during the cognisable period of the claim which she submitted on the 1st of February 2022.  The complainant advised the hearing that she remained on the Covid payment and disability allowance until April 2022. 

The complainant has claimed that she did not receive her Public holiday entitlements while on the PUP.

The respondent submit s that the complainant was paid all of her public holiday entitlements including St Patricks Day 2020 which is evidenced by her last payslip but he added that she had not returned to work since March 2020 as she had been on the Covid payment supplemented by a disability payment. 

The complainant submits that she requested to return to work in December 2021 but that the respondent told her that he would discuss it with her in the New Year and that no further discussion had taken place up to the date of the complaint submission on 1st of February 2022.  The complainant submits that she is entitled to a redundancy but she has made no claim under the redundancy payments act.   The respondent advised the hearing that there was no redundancy and that the complainant is still employed by them and on their books as an employee but that she has not attended work since March 2020 and has been in receipt of the Covid unemployment payment since then.

 The complainant submits that she did not receive public holidays accrued during the time she was in receipt of the Covid payment.   Employees who were laid-off as a result of the pandemic  continued to accrue public holidays which occurred during the first 13 weeks.

This claim was submitted on the 1st of February 2022 and accordingly the six month period of the complaint dates from the 2nd of August 2021 to the 1st of February 2022.   Thus any public holidays accrued fall outside of the cognisable period of the complaint.

It is clear from the evidence adduced that the complainant was in receipt of the Covid PUP payment during the cognisable period of the complaint  thus did not accrue Public Holidays during this time.

Accordingly based on the totality of the evidence adduced I declare this claim to be not well founded.

Accordingly based on the totality of the evidence adduced I declare this claim to be not well founded.

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

CA-00048475-004

01/02/2022

The complainant claims that she did not receive her accrued annual leave upon cessation of employment.  

Section 23 of the Organisation of Working Time Act, 1997 provides for the payment of compensation for any outstanding leave on the cessation of employment 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.

The complainant claims that she did not receive her accrued annual leave upon cessation of employment.  

This claim was submitted on the 1st of February 2022 and accordingly the six month period of the complaint dates from the 2nd of August 2021 to the 1st of February 2022.

The complainant submits that she requested to return to work in December 2021 but that the respondent told her that he would discuss it with her in the New Year and that no further discussion had taken place up to the date of the complaint submission on 1st of February 2022.  The complainant submits that she is entitled to a redundancy but she has made no claim under the redundancy payments act.  The respondent advised the hearing that there was no redundancy and that the complainant is still employed by them and on their books as an employee but that she has not attended work since March 2020 and has been in receipt of the Covid unemployment payment since then.    It is clear from the evidence adduced that the complainant was in receipt of the Covid PUP payment during the cognisable period of the complaint.  

In this case, cesser pay does not apply as the employment remained live throughout the cognisable period of the claim albeit under the umbrella of temporary layoff. 

Accordingly based on the totality of the evidence adduced I declare this claim to be not well founded.

Accordingly based on the totality of the evidence adduced I declare this claim to be not well founded.

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

CA-00048475-005

01/02/2022

The complainant claims that she did not receive her accrued public holidays upon cessation of employment.  

Section 23 of the Organisation of Working Time Act, 1997 provides for the payment of compensation for any outstanding leave on the cessation of employment 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.

(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

The complainant claims that she did not receive her accrued public holidays upon cessation of employment.  

The complainant submits that she requested to return to work in December 2021 but that the respondent told her that he would discuss it with her in the New Year and that no further discussion had taken place up to the date of the complaint submission on 1st of February 2022.  The complainant submits that she is entitled to a redundancy but she has made no claim under the redundancy payments act.    The respondent advised the hearing that there was no redundancy and that the complainant is still employed by them and on their books as an employee but that she has not attended work since March 2020 and has been in receipt of the Covid unemployment payment since then.

This claim was submitted on the 1st of February 2022 and accordingly the six month period of the complaint dates from the 2nd of August 2021 to the 1st of February 2022.    It is clear from the evidence adduced that the complainant was in receipt of the Covid PUP payment during the cognisable period of the complaint.  

In this case, cesser pay does not apply as the employment remained live throughout the cognisable period of the claim albeit under the umbrella of temporary layoff. 

Accordingly based on the totality of the evidence adduced I declare this claim to be not well founded.

Accordingly based on the totality of the evidence adduced I declare this claim to be not well founded.