Complainant

Respondent

Parties

Angelika  Slusarz

Grzegorz Sleczka

Representatives

 In Person

 Katarzyna Brady

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00038762-001

16/07/2020

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

CA-00038762-002

16/07/2020

The Respondent is the proprietor of a delicatessen shop business located in Summerhill, Nenagh County Tipperary.

The Complainant was employed by the Respondent as a sales assistant from the 19th of March 2013 until the 24th of November 2019 when the Respondent was forced to close the business due to financial losses which had arisen which made the business unviable.  The business has ceased to trade as at the date of hearing in October 2022.

The parties were in agreement regarding the start and cessation dates for the Complainant’s employment and it was accepted by the Respondent that the Complainant was dismissed from her employment on the 24th of November 2019. It was further accepted by the Respondent that the Complainant was dismissed by reason of redundancy.

The Complainant made two claims

1.      CA-00038762-001

A claim for a redundancy lump sum calculated in accordance with her statutory entitlements pursuant to the Redundancy Payments Acts 1967 (as amended).

The Respondent conceded liability in respect of this claim.

2.      CA-00038762-002

A claim pursuant to section 27 of the Organisation of Working Time Act, 1997 (as amended) for outstanding pay in respect of Public Holidays from 2013 to 2019 holiday and.

The Respondent contested these claims in full.

The matter was heard before me on the 14th of October 2022 by way of online hearing. 

The Complainant represented herself at the Adjudication Hearing with the assistance of a Polish Interpreter.

The Complainant made two claims

1.      CA-00038762-001

A claim for a redundancy lump sum calculated in accordance with her statutory entitlements pursuant to the Redundancy Payments Acts 1967 (as amended).

2.      CA-00038762-002

A claim pursuant to section 27 of the Organisation of Working Time Act, 1997 (as amended) for outstanding pay in respect of Public Holidays from 2013 to 2019Under affirmation, the Complainant stated as follows:

The Complainant gave evidence under Affirmation. She was assisted by a Polish Interpreter also under affirmation.

She outlined her commencement date and cessation date and the fact that the shop closed in November and her employment ceased on the 24th of November 2019. She was not given advance notice of the closure. She requested the Respondent to pay her redundancy entitlements to her on a number of occasions subsequently but the Respondent did not pay the lump sum or any sum to her.

In relation to the claim under Section 27 of the Organisation of Working Time Act 1997, the Complainant said that she did not receive pay in respect of Public Holidays from 2013 until the date of termination of her employment. She was cross examined by the Respondent’s daughter who was representing the Respondent and it was put to her that the records reflected that she was paid an additional days pay for every public holiday in 2019.  It was further put to her that that she had signed the work records each week in 2019 in relation to the hours which she actually worked during this period but that her pay consistently reflected an additional day’s pay whenever a public holiday arose. She accepted that she signed the working-hours records but she said that she did so under duress fearing that she would be fired if she did not. She did not provide any specifics as to these allegations and she did not complain to the Respondent or to anyone else about the issue either verbally or in writing. Noting that the Respondent’s business had been the subject matter of a NERA inspection, I asked the Complainant whether she had informed the Inspector who was on the premises carrying out an inspection, of the fact that she felt forced to sign the work records. She said that she did not so inform the Inspector due to language difficulties. The Complainant accepted that no issues of concern for the Respondent arose form the NERA inspection.

The Respondent was unable to appear in person due to ill-health. He was represented by his daughter Ms. Katarzyna Brady who gave evidence on his behalf under affirmation.

The respondent accepted that the Complainant had requested and was not paid her redundancy lump sum. This was due to financial difficulties on the part of the Respondent which said difficulties are continuing. On behalf of the Respondent the commencement date and cessation date were agreed. Further the Respondent fully accepted that the Complainant is entitled to a redundancy lump sum calculated in accordance with the Redundancy Payments Act 1967 (as amended).

The Respondent’s representative referred to work records and pay records and she explained that those records reflected that the Complainant signed the work records reflecting the hours which she actually worked in a given week and that the pay records reflected that on a period where a Public Holiday fell the pay records reflected that the Complainant was consistently paid an additional day’s pay where a Public holiday arose. A sample of these records for 2019 were produced and put to the Complainant. The Respondent’s representative, said that she had no knowledge of or documentation relating to the Complainant’s allegation, made for the first time at the hearing, that she was put under any duress or threatened with dismissal if she did not sign the work records. On her father’s behalf she said that she took exception to these allegations. The NERA inspection did not give rise to any issues for the Respondent and the Complainant accepted that this was the case.

Subsequent Enquiries/Documentation/Submissions

At my direction at the conclusion of the hearing the Respondent supplied the full work and pay records for 2019 which were also forwarded to the Complainant for comment. The Complainant provided a written submission in an email dated the 18th of October 2022. In this submission, again the Complainant did not deny signing the work records forms but she said that she did not even check them. She did not provide specifics by way of dates or other more concrete evidence regarding how, when and by what means she was put under duress or threatened with dismissal if she did not sign the work records. 

CA-00038762-001 Redundancy Claim

I am satisfied that the Complainant was made redundant and is entitled to a redundancy payment based on having had insurable employment (under the Social Welfare Acts) for the duration of her employment based on the following facts

Commencement Date: 19th of March 2013

End of Employment: 24th of November 2019

Gross weekly pay: € 318.50

CA-00038762-002 Claim for Outstanding Public Holiday Entitlements

The Claims for outstanding Public Holliday Pay from the years 2013 to 2018 are out of time.

In relation to the claim for outstanding Public Holiday pay for the year 2019, I accept the documentary evidence submitted by the Respondent which clearly indicates that the Complainant was paid  an additional day’s pay over and above those actually worked, for each period in which a Public Holiday fell in the year 2019. The Complainant admitted that she signed the work records and I do not accept as reasonable her evidence that she did so under duress or fearing that she would be fired if she did not. No complaint to this effect was ever made during the Complainant’s employment, to the NERA Inspector who was present on the premises or subsequently, in the Complaint form or submissions prior to the hearing. The NERA inspector did not raise any concerns for the Respondent. The Complainant’s allegations of duress and threatened dismissal were made for the first time at the adjudication hearing. I am satisfied that the Complainant was paid an additional day’s pay in accordance with her entitlements under the Organisation of Working Time Act 1997 on each occasion in 2019 when a Public Holiday arose. Accordingly I find that the claims are not well-founded.

CA-00038762-001

Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

The Employer has failed to pay a redundancy payment in accordance with the Act and the within claim constitutes an appeal by the Employee (Appellant/Complainant) against that failure as provided for by s. 39, subsections (15). I allow that appeal.

A Redundancy Lump sum award should be made to the Employee/Appellant/Complainant based on the following details:

Commencement Date: 19th of March 2013

End of Employment: 24th of November 2019

Gross weekly pay: € 318.50

CA-00038762-002

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint/dispute in accordance with the relevant redress provisions under Schedule 6 of that Act.

The Complaints pursuant to Section 27 of the Organisation of Working Time Act 1997 (as amended)  are not well founded

Redundancy – Section 39 of the Redundancy Payments Acts 1967 – 2012  - Public Holidays - Section 27 of the Organisation of Working Time Act 1997