Complainant

Respondent

Parties

Hilary  O'Neill

Howth Haven, Beauty Clinic Waterberry

Representatives

  In person.

Sinead Finnerty, Peninsula

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-00040778-001

02/11/2020

The Complainant was employed as a Beauty Therapist on a  part- time basis from 30th  September 2009.

The Complainant had been a full-time employee of the Respondent since July 2000 prior to her switch to part-time work.

This complaint was received by the Workplace Relations Commission on 23rd October 2020.

The complaint submitted by the Complainant is very straight forward.

The Respondent were not paying her properly for Public Holidays and this had been the case for 11 years.

Background:

1.       Waterberry Trading Limited, Trading as Howth Haven Beauty Clinic (hereafter “the Respondent”) operates as a beauty clinic in Howth, Co Dublin.

2.      Hilary O’Neill (hereafter “the Complainant”) was employed as a Beauty Therapist on a  part- time basis as of 30 September 2009.

3.       The Complainant has taken a claim under the Section 27of the Organisation of Working Time Act, 1997 (the “1997 Act”) alleging that she has not been paid the correct rate for Public Holidays contrary to section 27 of the 1997 Act.

Preliminary Issue: - Section 27 Organisation of Working Time Act:

1.       Section 27 of the 1997 Act reads as follows:

“(4)A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint related.

(5) Notwithstanding subsection (4), a rights commissioner may entertain a complaint under this section presented to him or after the expiration of the period referred to in subsection (4) (but not later than 12 months after such expiration) if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause.

2.       The Complainant details the contravention being an alleged failure to furnish the Complainant with public holiday payment at the correct rate, which was entitled to her. The beginning of such contravention is identified as being 11 years ago, beginning in  or around 2010.

3.       The Respondent would refer to the High Court judgement in HSE -v- McDermott [2014]IEHC 331where the relevant period for the purpose of claims under the similar  conditions applied to the Payments of Wages Act was extensively considered. Hogan

J. concluded as follows:

“For the purposes of this limitation period, everything turns, accordingly on the  manner in which the complaint is framed by the employee. If for example, the employer has been unlawfully making deductions for a three-year period, then provided that the complaint which has been presented relates to a period of six months beginning “on the date of the contravention to which the complaint relates”, the complaint will nonetheless be in time. It follows, therefore, that if an employer has been making deduction X from the monthly salary of the employee since January 2010, a complaint which relates to deductions made from January 2014 onwards and which is presented to the Rights Commissioner in June 2014 will still be in time for the purposes of s. 6(4). If, on the other hand, the complaint was to have been framed in a different manner, such that it related to the period from January 2010 onwards, it would then have been out if time.”

4.       In light of the High Court’s analysis, the Respondent would submit that the Complainant has failed to provide a timeframe within the wording of his claim and therefore the claim is unlawful pursuant to the decision in McDermott.

5.      It is submitted that the date to which the present complaint relates commences in 2010, a specific date is not presented by the Complainant.

6.      The Respondent refers to Section 41(6) of the Workplace Relations Act (2015) which states:

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.      As the Complainant has failed to reference in their complaint when the contravention  began, it is submitted that the cognisance period should be limited to the six (6) months prior to the complaint being lodged.

8.      The Complainant lodged her complaint with the WRC on 2 November 2020 which would make the cognisance period the May 2020 to the date the claim was lodged.

9.      Furthermore, the Complainant in her “Key Points of my Submission” document refers to the underpayment being brought to the attention of the Respondent owner in November 2019. In this matter I refer to the High Court cases of Moran –v- The Employment AppealsTribunal IEHC 154 and Health Service Executive –v- McDermot IEHC 331, where the court was asked to consider the meaning of “within the period of six months beginning on the date of the contravention to which the complaint relates”.

10.   Furthermore, the Complainant within her submission refers to the date of contravention as being “over an eleven-year period.” Should it now be her submission that the date of      contravention was “an unknown date in November 2019” we would again refer to McDermott and Moran cases above.

11.   The Complainant has failed to refer this complaint to the Workplace Relations Commission within 6 months from date of the contravention. Herein, the Respondent submits that this claim is out of time and statute barred.

Facts:

1.      The Complainant has been employed with the Respondent company over the last twenty  years with the last eleven years of her employment on a part time basis, hours culminating on average around 82 hours per month.

2.      The Respondent submits that the Complainant was a hard worker and was well liked by all the clients in the business. Over the expanse of a twenty-year period the Complainant and the Respondent developed a strong working relationship and a friendship outside  of the business, a statement that was agreed and set out in the Complainants notice of resignation.

3.      The Respondent submits that during the Complainants time with the business and due to her family commitments, the Respondent business allowed for a flexible work roster for the Complainant, assisting her in working around her family requirements.

4.      In April 2020, in light of the national measures taken by way of response to the COVID-19 crisis, it was necessary for the Respondent to avail of the national Temporary Wage Subsidy Scheme (“TWSS”) which was implemented from 26 March 2020 by the Revenue Commission, to support employers in maintaining the payment of their employers during the pandemic.

5.      The Respondents value each of their employees and acknowledge that they have a duty of care to ensure the health safety and welfare of their employees and act in accordance with what is reasonably practicable to achieve this at all times. In a means of ensuring the economic and financial security of their employees the Respondent chose to pay the optional “top-up” payment in the amount of the difference between the TWSS amount and the net pay the Complainant would have received.

6.      During this period of time, an employee of the Respondent business raised an issue with the calculation of the public holiday entitlement, putting the Respondent on notice of a potential issue.

The Respondent submits that this conversation was the first instance the Respondent became aware of any issues and does not recall the conversation the Complainant references in her claim but she does not have any reason to disbelieve this did not occur. Furthermore, the Respondent confirms that she made reference to the other part time employees in this conversation as she was aware the payment would affect the part time staff of the business, which includes the Complainant.

7.      The Respondent reviewed the requirements as set out by the Organisation of Working Time Act, 1997 and identified that she was not aware of or not availing of one of the four options as set out. The Respondent had calculated the payment of public holidays as on fifth of their normal weekly pay or 20%. At a percentage of 3.8 of  the weekly hours.

8.      In light of this new understanding of the 1997 Act the Respondent chose to rectify any incorrect calculations and adjusted both the Complainant and her fellow employees’ rate of payment.

9.      The payment rectification was made on the March 2020 payroll. Again, this is an example of the duty of care the Respondents have for their employees. The business was closed due to Covid  but the rectification was made to ensure that any error or miscalculation was amended in a timely manner regardless of the fact the business was not operating at this time.

10.  On the 29 June 2020, the Respondent was allowed under the Governmental guidelines to reopen the business and on the 6 July the Complainant handed in her  notice.

11.  As set out above, the Respondent and Complainant had an excellent working relationship, and the Respondents were sad to lose the Complainant as an employee but wished her well in her future education endeavours.

12.  The Complainant ceased employment on the 31 August 2020.

13.  On September 11, the Complainant attended the business and acknowledged that she had been overpaid the €568.05. At this meeting the Complainant addressed her concerns  relating to the public holiday pay, the Respondent stated that it was the company’s intention to pay her all the bank holidays and further clarified that she corrected the rate since March 2020.

14.  The Complainant at this meeting raised her grievance in respect of the calculation and deduced that she was entitled to 11 years of bank holidays multiplied by 22 euro, multiplied by 9(bank holidays per year). The Respondent set out that this would not  be the correct calculation and advised the Complainant she would need to take into account what hours she worked on the days before a bank holiday and whether or not she was rostered to work on the day a bank holiday may fall. The Respondent asked for additional time to rectify and clarify the matter.

On the 18 September 2020, a phone conversation occurred between the Respondent and the Complainant, where the Complainant raised her concerns again over the calculation of payment of public holidays. The Respondent explained to the Complainant that on foot of a conversation with a colleague the rate had been rectified, all public holidays were correctly paid for 2020 and that in addition the overpayment for the months of July and August would contribute to the payment of bank holidays for 2019. The overpayment would also contribute to the payments of 18 months. In respect of the previous 11 years, this was governed under the Statute of Limitations, which the Respondent was only aware of after speaking to Peninsula and advised the Complainant to speak to citizens information to obtain her own information.

15.   Complainant alleges in her submission that she was informed she “had no rights to any redress”. In respect of this Ms Hanratty will give evidence that she advised Complainant that due to the statute of limitations she was not entitled to claim redress in  respect of an eleven-year period.

16.  For clarification purposes the Respondents never intended to underpay or incorrectly calculate the payment owed to Complainant. This was an error in calculation for which the Respondents endeavoured to rectify once aware of same and provided compensation for the acknowledged clerical error.

17.  Correspondence following this call can be found at page 15 of our booklet.

18.  In addition to the above referenced correspondence further email correspondence was submitted by Complainant in relation to an alleged insinuation, these claims are whole heartedly disputed by the Respondent. The Respondents submit that no ill feeling exists between any parties and express sadness at the demise of the relationship. The matter before us relates to an Organisation of Working Time Act claim. We accept and acknowledge the emotional turmoil experienced by Complainant in respect of her belief she was perceived as gullible. This is disputed by the Respondents in this matter and they will give evidence that at no time did they purposefully intend to underpay Complainant and they had the utmost respect for Complainant and they are truly upset over the turn of events and the claim before the WRC. However, as this is not a part of the claim in this proceeding, we will not deal with this matter further.

19.  The Respondent overpaid the Complainant an amount of €568.05 over the July and August time period.

20.  Furthermore, correspondence from the  Respondent to Complainant setting out that Complainant could retain the overpayment and a further €500 was furnished to Complainant as an apology and gesture of good will.

21.  In addition to the above, the Respondent took this opportunity to address the“intentionally withholding information” comment made by Complainant, a comment that is disputed by the Respondent.

Submission:

CA – 00040778-001 Organisation of Working Time Act, 1997

1.      The Complainant’s claim is pursuant to section 27 of the 1997 Act which entitles an  employee to bring a complaint to the Workplace Relations Commission.

2.      The Respondent relies on the preliminary point raised in respect of the High Court decision of Hogan J in McDermott ruling for the claim to be dismissed by should the Adjudication Office not be with the Respondent in respect of that point raised then the Respondent asks that the cognisance period be taken into account and that any award made should be limited to monies due and owing from May 2020 to November 2020, which the Respondents have already furnished to the Claimant.

The representative of the Respondent then included text from the Act on the Public Holiday entitlements.

3.      The Claimant in this matter was employed over the period of time the claim relates was a part time employee and would have satisfied the criteria at section 4, set out above.

4.      It is the Respondent’s position that they calculated the payment of public holidays in the following manner as set out in the spreadsheet at page 22 of your booklet of papers.

5.      As set out the calculation is based on the yearly bank holidays, the average number of total hours worked, total weeks, the average number of hours per week, 20% of the working week and the rate of pay.

6.      The Respondent will give evidence that in using the template it generated an incorrect percentage under the heading “20% of working week”. This percentage should have been 3.8 as opposed to the generated 2.36 and was a genuine mistake and calculation due in full to the error of the account document and the Respondents trust in the calculation.

7.      In or around February of this year a query from an employee gave rise to a concern of the Respondent that not all payment options were considered in respect of bank holiday payments. The Respondent proceeded to rectify the payment and all bank holidays for 2020 were paid at the following rate: 20% of the working week a rate that is 3.8.

The Claimant worked part time for the period relating to this claim, her entitlements under the 1997 Act is one fifth of her weekly pay for public holidays where the employee was not normally working on the day the bank holiday fell or, a day pay for the public holiday if the holiday falls on a day normally worked by the employee. The Respondent calculated this as one fifth of the weekly pay, being 20% of 19 hours which equals 3.8 hours multiplied by €11 per hour amounting to €42.

The Respondent submits that they have always endeavoured to do the best by their employees, the Claimant included. Any discrepancies in respect of the calculation were in error and the Respondent have furnished a sum of €1,68.05 to rectify any mistaken payment for the 18 months preceding the claim.

·   Therefore, we would submit that the Respondent did everything in their power to  rectify the issues which gave rise to this claim.

·   We would respectfully reiterate that the period of 6 months beginning on the date of   the contravention to which the complaint related has expired.

   Conclusion:

8.      The Respondent has furnished the Claimant with payment for public holidays for 2020    and throughout her employment.

9.      It is therefore the Respondent’s respectful submission that the Adjudicator dismiss  this claim against the Respondent and no award of compensation is made.

At point 2 of their submission the Respondent representative very clearly states:

The Respondent relies on the preliminary point raised in respect of the High Court decision of Hogan J in McDermott ruling for the claim to be dismissed by should the Adjudication Office not be with the Respondent in respect of that point raised then the Respondent asks that the cognisance period be taken into account and that any award made should be limited to monies due and owing from May 2020 to November 2020, which the Respondents have already furnished to the Claimant.

Section 27 (2) of the Act reads as follows:

27 (2) An employee or any trade union of which the employee is a member, with the consent of the employee, may present a complaint to a rights commissioner that the employee’s employer has contravened a relevant provision in relation to the employee and, if the employee or such a trade union does so, the commissioner shall give the parties an opportunity to be heard by the commissioner and to present to the commissioner any evidence relevant to the complaint, shall give a decision in writing in relation to it and shall communicate the decision to the parties.

Section 27 (4) of the Act reads:

27 (4) A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

The representative for the Respondent has correctly pointed out that the cognisable period is therefore the six months period ending on 2nd November 2020 (the date the WRC received the complaint form).

The complaint submitted by the Complainant is well founded however the underpayment in relation to the Public Holiday entitlement during the cognisable period is less than the overpayment made to the Complainant by the Respondent.

While I find the complaint to be well founded I cannot make an order for compensation in these circumstances.

The complaint submitted by the Complainant is well founded however the underpayment in relation to the Public Holiday entitlement during the cognisable period is less than the overpayment made to the Complainant by the Respondent.

While I find the complaint to be well founded I cannot make an order for compensation in these circumstances.

OWT Act 1997; payment in respect of Public Holidays.