FULL RECOMMENDATION
PARTIES : MARC O'MAHONY AND THE GOOD FOOD SHOP DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No. ADJ-00032452 CA-00042962-002,005 This is an appeal under the Organisation of Working Time Act,1997 ‘the Act’. Ms. Delamico, ‘the Complainant’, was employed by Mr. Marc O’ Mahony and the Good Food Shop, ‘the Respondent’, from July 2020 to September 2020. The Complainant lodged a complaint with the Workplace Relations Commission, ‘WRC’, that she was not paid for a public holiday on 3 August 2020. The Respondent submitted that the Complainant was not entitled to payment as she had not worked the requisite number of hours provided for in the Act. The Adjudication Officer, ‘AO’, decided that the complaint was well founded. The Respondent appealed to this Court. Note; The Complainant’s submission to the Court was received late. The Respondent was asked if he was happy to proceed and he indicated that he was. Summary of Respondent Arguments The Complainant only commenced in the employment on 23 July 2020. As a result, she did not meet the requirement of s.21(4 ) of the Act that provides for payment for public holidays only if the worker has worked for the employer for 40 hours in the previous period of 5 weeks. Between 23 July 2020 and 3 August 2020, she worked less than 40 hours. The Complainant claims to have commenced work on 16 July 2020 and to have worked on 16,17 and 20 July 2020. However, she was in training on those dates, was not an employee and was not entitled to be paid On 16,17 and 20 July 2020 she was, by agreement, in training and, as per the contract given to her, those days were training days, in respect of which it was made clear that she would not be paid. Only upon successful completion of this training was she offered a position with a commencement date of 23 July 2020. Posts in the foodstall are advertised by having a sign outside. Every applicant was given a copy of the basic job requirements, which were discussed further at interview. The Respondent went through these personally with the Complainant. The ‘hours worked’ sheet prepared by the Complainant show this time as unpaid training. The text produced to the Court offering employment shows that the employment was to start on 23 July 2020. A further text shows that she was asked to advise Revenue of this start date, to which she responded with a request to postpone registration for a week. Further texts make no mention of payment for the dates in question. The standard contract of employment provided to the Court allows for the employee’s name and start date to be hand-written. The Complainant signed a version that she created and she back-dated her start date to 16 July 2020. That is not the hard copy that she was given and is not signed by the Respondent like the real copy. The Complainant was training on the days in question. She was not working and she was not in the employment. There was a written agreement made with her prior to her commencing employment. The workplace was closed on 3 August 2020. This is an issue of principle and is not about the amount of money. Summary of Complainant Arguments The Complainant worked as a Shop Assistant in the same manner as other staff on 16,17 and 20 July 2020. She served customers, she worked on the till etc. She worked from 9 am to 6 pm on two days and from 9 am to 4.30 pm on the other day. The Complainant did not see any contract in advance of commencing employment that provided that these days would be unpaid and did not consent to same. She received the contract after she had worked the three days. The Complainant believed that if she secured the job, she would be paid subsequently for the days concerned. The Complainant worked a total of 54.5 hours for the Respondent between 16 July and 3 August 2020 and meets the requirements in respect of payments for public holidays as set out in s.21(4) of the Act and is, therefore, entitled to a payment for the public holiday on 3 August 2020. The applicable Law Organisation of Working Time Act, 1997 “ working time” means any time that the employee is— ( a) at his or her place of work or at his or her employer’s disposal, and ( b) carrying on or performing the activities or duties of his or her work, and “ work” shall be construed accordingly 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: 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. (4) Subsection (1) shall not apply, as respects a particular public holiday, to an employee (not being an employee who is a whole-time employee) unless he or she has worked for the employer concerned at least 40 hours during the period of 5 weeks ending on the day before that public holiday. 27. (3) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely: ( a ) declare that the complaint was or, as the case may be, was not well founded, ( b ) require the employer to comply with the relevant provision, ( c ) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years ’ remuneration in respect of the employee ’ s employment. 28. A decision of the Labour Court under section 44 of the Workplace Relations Act 2015 on appeal from a decision of an adjudication officer referred to in subsection (3) of section 27 shall affirm, vary or set aside the decision of the adjudication officer. Deliberation This case must be read in conjunction with an appeal under the Payment of Wages Act involving the same parties. For reasons set out in the Payment of Wages case, the Court determined that there was a employment relationship between the parties commencing on 16 July 2020. The Court in that case determined that an appeal by the Respondent, based on a claim that the employment relationship only commenced on 23 July 2020, was not well founded. On the basis of evidence supplied to the Court by the Complainant, she attended the workplace for 54.5 hours between 16 July 2020 and 3 August 2020. As a consequence, she is entitled to payment for the public holiday on 3 August 2020. The Court determines that the compensation of €80 decided upon by the AO is an inadequate recognition of the fact that the Complainant was deprived of an entitlement, forced to engage in these proceedings in order to secure that entitlement and, as a consequence, has had to wait for a period of 18 months to receive her statutory entitlement. The Court notes that in accordance with s. 27(3) (c) it can award compensation that it deems to be just and equitable up to two years’ pay. Taking account of all circumstances, the Court determines that the appropriate compensation is €250 and the Respondent is directed to pay this amount to the Complainant. Determination The Decision of the Adjudication Officer is varied.
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