DWT2218

SUBJECT:

1.Appeal Of Adjudication Officer Decision No. ADJ-00029051 CA-00038770-003,004

BACKGROUND:

2.An Adjudication Officer hearing took place on 1 September 2021 and a Decision was issued on 11 November 2021. The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 29 November 2021 in accordance with section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 4 February 2022. The following is the Determination of the Court:-

DETERMINATION:

This matter comes before the Court as an appeal by Vladena Soltan (the Appellant) against a decision of an Adjudication Officer in her complaint against Shannons Solicitors (the Respondent) made under the Organisation of Working Time Act, 1997 (the Act). The Adjudication Officer decided that the complaint was not well founded.

Background

The Appellant contends that she was employed by the Respondent from 10^thFebruary 2020 until 22^ndJune 2020. She contends that, in contravention of the Act at Section 23, the Respondent did not, on cesser of her employment, pay to her an amount equal to the pay that she would have received had she been granted annual leave in the period from 10^thFebruary 2020 until 26^thMarch 2020, the date upon which she was laid off or otherwise advised by the Respondent that she should cease to attend for work and should instead avail of state supports in light of the impact of COVID upon the business.

The Respondent agrees that the Appellant was at no time provided with a payment in respect of outstanding annual leave upon the termination of her engagement with the Respondent.

The Respondent contends that the Appellant was not employed by it under a contract of service at any material time and was engaged in an internship or work experience programme from November 2019. The internship or work experience programme was unpaid until the Respondent decided, in February 2020, to pay a stipend to her in acknowledgement of the work she was doing in the Respondent firm.

The Appellant submitted that whereas she was involved in a form of unpaid internship from November 2020; she was offered and accepted employment with the Respondent with effect from 10^thFebruary 2020 and that the salary offered to her and accepted by her was €20,000 per annum from that date.

No matter concerning the nature of the relationship between the parties from November 2019 to 10^thFebruary 2020 was before the Court.

It is clear that the matter before the Court will therefore turn on whether the Appellant was engaged by the Respondent from 10^thFebruary 2020 as an employee within the meaning of the Act.

Summary position of Appellant

The Appellant submitted that, following a period of unpaid engagement with the Respondent from November 2019, the Respondent in the person of Vincent Shannon, a senior partner of the Respondent, contacted her at the end of January 2020 to offer her employment as a full-time legal secretary in the Respondent firm. Mr Shannon, in a phone call at that time, offered her a salary of €20,000 per annum in return for a 37.5-hour week commencing on 10^thFebruary 2020.

She submitted that the job was offered to her by phone call from the Respondent in late January 2020 and that, consequent on that phone call, she terminated her permanent employment with another employer. She worked from 10^thFebruary 2020 for three weeks in that month and received a salary payment of €1,153.84 which exactly reflects a calculation of three weeks’ pay based on a salary of €20,000 per annum.

She provided the Court with a copy of a pay slip for that period, described on that pay slip as ‘monthly period 2’, provided to her by the Respondent which demonstrated that she was paid €1,153.84 and that the Respondent had paid employer contributions of €101.54 as well as having made deductions from her salary of €8.83 in employee PRSI contributions and €8.07 in Universal Social Charge.

She also provided the Court with a copy of a pay slip for the period to 26^thMarch 2020, described on that payslip as ‘monthly period 3’provided to her by the Respondent which demonstrated that she was paid €798.81 in respect of the period to that date and that the Respondent had paid employer contributions of €70.30 as well as having made a deduction from her salary of €8.07 in Universal Social Charge.

She provided the Court with an e-mail from a partner of the Respondent on 26^thMarch 2023 advising her to make a claim against the Department of Social protection but assuring her that she would be paid “for the three weeks you worked in March”.

The Appellant also provided the Court with a letter dated 6^thJuly 2020 from the Respondent which stated that she had “worked in this office from 29^thNovember 2019 to 24^thMarch 2020 as a legal intern and then a Legal Secretary. Due to Covid staff were let go at this time and her employment officially ended on June 22^nd2020”

She submitted that in the period in question she provided general secretarial assistance, production of correspondence and dictaphone work as well as supporting a partner and on occasion covering the main reception area of the practice. She said that she held more responsibility as an employee than she had as an intern / work experience participant previously.

She submitted that she was required to complete a period of self-isolation due to Covid 19 from 24^thMarch 2020 until 7^thApril 2020. On the 22nd June 2020 she spoke with Vincent Shannon on the phone and he told her that the Respondent no longer had a job for her and advised her to continue to claim the pandemic unemployment payment (PUP).

Summary position of Respondent

The Respondent submitted that the Appellant was not at any time or at all engaged under a contract of service giving rise to an employer / employee relationship and consequently no breach of the Act as alleged could have occurred.

She had made unsolicited contact with the Respondent in November 2019 and a non-remunerative work experience placement was discussed. Upon accepting the placement, it did not give rise to a contract of employment.

When asked by the Court to comment on the letter of the Respondent dated 6^thJuly which asserted that the Appellant worked in the office until 24^thMarch as a legal intern and then as a legal secretary and that her employment officially ended on June 22^nd2020, the Respondent’s representative submitted that this letter was by way of a reference. He agreed that a reference document was a serious document and that a person reading its content was entitled to believe that it was true.

The Court asked the Respondent’s representative to comment on the proposition that the payment made to the Appellant on 28^thFebruary 2020 was the exact amount which would have been due to be paid to her had she been engaged on a salary of €20,000 as she alleged from 10^thFebruary until 28^thFebruary 2020. The representative submitted that if this was the mathematical reality it was, according to his instructions, a co-incidence.

Mr Vincent Shannon, a senior partner, gave evidence on behalf of the Respondent. He said that the Appellant was never an employee. He said that he could not recollect a telephone conversation with the Appellant at the end of January and stated that he did not offer her employment on a full-time basis.

He accepted in evidence that the Appellant did work for 37.5 hours per week and that she carried out the tasks as described by her in her submission with effect from 10^thFebruary 2020 and that she did work more intensively in the period after 10^thFebruary than she had previously.

He stated that the Respondent’s letter of 6^thJuly 2020 was ‘not completely accurate’, that he was trying to oblige the Appellant and, in that context, he had felt it appropriate to ‘gild the lily’in terms of her role with the Respondent.

He had felt in February 2020 that it was not fair to have the Appellant in the office on work experience and to be receiving no remuneration. He felt that an ex-gratia or stipendiary payment should be made to her. He stated that the accountant for the Respondent handled all matters with associated with payments to the Appellant and that he could not give evidence as regards calculations or deductions from the payments made to her in February or March 2020.

When questioned by the Court he could not clarify when the Appellant had been advised as to why a payment would be made into her bank account in February 2020 but believed that she must have been so advised by him.

The Law

Section 19 of the Act, in relevant part, provides 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.

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,

Discussion and conclusions

The parties are agreed that no annual leave was granted to the Complainant at all and that no Payment in respect of outstanding annual leave upon cesser of employment was paid to the Complainant on 22^ndJune 2020.

It is common case that she worked for 37.5 hours per week in the Respondent firm with effect from 10^thFebruary 2020. According to the Appellant she was working under a contract of service following an offer of employment made to her by Vincent Shannon in a ‘phone call in late January 2020. According to Mr Shannon, he could not recollect a phone conversation with the Appellant at the end of January.

In any event he stated in evidence that no offer of employment was made to her at that time or at all.

It is a mathematical fact that the payment made to the Appellant on 28^thFebruary was in the exact amount which would have been due to her had she, as she alleged, accepted an offer of employment commencing on 10^thFebruary on a salary of €20,000 per annum.

It is also a fact that in a letter dated 6^thJuly the Respondent did record the fact that the Appellant had worked for the Respondent as she alleged as a Legal secretary and that her employment had, as she alleged, been terminated on 22^ndJune 2020.

There is no dispute between the parties that the Appellant carried out the tasks and duties which she alleged she had carried out on behalf of the Respondent with effect from 10^thFebruary 2020.

In all the circumstances, the Court concludes that the amount of the payment made to the Appellant in February 2020 was not a co-incidence. It was an exact calculation of the wages which would have been due to her arising from a salary of €20,000 per annum.

In those circumstances, the Court concludes that the payment was, as the Appellant alleges, a salary payment arising from a contract of employment within the meaning of the Act. The Court is fortified in this conclusion by the fact that the accountant for the Respondent made statutory deductions and payments appropriate to an employer and employee when calculating the payments to be paid to the Appellant in both February and March 2020.

For these reasons the Court concludes that the Appellant was engaged by the Respondent under a contract of employment within the meaning of the Act with effect from 10^thFebruary 2020. The Court further concludes that the accepted failure to provide her with a payment in respect of outstanding annual leave upon cesser of her employment on 22^ndJune 2020 amounted to a breach of the Act at Section 23

Award

The Act is an Act to provide for the implementation ofDirective No. 91/533/EEC of 14^thOctober 1991of the Council of the European Communities on an Employer’s obligation to inform employees of the conditions applicable to the contract or employment relationship.

InVon Colson & Kamann v Land Nordrhein – Westfalen [1984] ECR 1891the CJEU has made it clear that where such a right is infringed, the judicial redress provided should not only compensate for economic loss sustained but must provide a real deterrent against future infractions. The Act is an Act to provide for the implementation of a directive of the EU and consequently the jurisprudence of the CJEU has application in this case.

The Act at Section 7 (2)(d) in relevant part makes provision as follows

7(2) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of sections 3, 4, 5, 6 or 6C shall do one or more of the following, namely —

(d) in relation to a complaint of a contravention under change section 3, 4, 5, or 6, and without prejudice to any order made under paragraph (e) order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment

Decision

The within appeal is, for the reasons outlined above, well founded. Having regard to all of the circumstances, the provisions of Section 7 of the Act and the standard required by the CJEU in Von Colson, the Court measures the appropriate level of compensation which is just and equitable having regard to all of the circumstances to be €400.

The Court orders the Respondent to pay compensation to the Appellant in that amount.

The decision of the Adjudication Officer is set aside.

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
OC	______________________
21 February 2022	Chairman