Complainant

Respondent

Parties

Sinead Walsh

Hair and Beauty by Helen

Representatives

Self-represented 

 Did not attend and was not represented

Act

Complaint Reference No.

Date of Receipt

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

CA-00055744-001

22/03/2023

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

CA-00055744-002

Withdrawn

22/03/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00055744-003

22/03/2023

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

CA-00055744-004

27/04/2023

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

CA-00055744-005

27/04/2023

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

CA-00055744-006

Withdrawn

27/04/2023

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

CA-00055744-007

Withdrawn

27/04/2023

In her evidence, the complainant said that she commenced working for the respondent on May 7th 2019 as the manager of a hair and beauty salon.  She worked for three days a week, for which she was paid €360.  The complainant said that she was paid €200 per week through the payroll and €160 in cash.  She went on maternity leave on September 11th 2021 and, although she was due to return to work on March 14th 2022, she suffered from chronic back pain and was unable to go back.

On October 15th 2022, the owner of the salon where she worked sent the complainant a WhatsApp message to let her know that the business was closing on December 23rd.  She then found out through a social media post that it was closing on November 26th.  On October 18th, the complainant sent a text message to the respondent’s accountant in which she sought her entitlement to redundancy pay and pay for the holidays she accrued during her maternity leave and sick leave.  When she got no response from the owner or the accountant, she submitted these complaints to the WRC on March 27th 2023.

CA-00055744-001:  Complaint under the Redundancy Payments Act 1967

The complainant claims that, when her employment ended on November 26th 2022, due to the closure of the hair and beauty salon where she worked, she did not receive a statutory redundancy payment.  She said that her efforts to engage with her former employer have not succeeded and she received no response from the company’s accountant. 

CA-00055744-003:  Complaint under the Minimum Notice Act 1973

The complainant said that she considers the WhatsApp message from her former employer as disrespectful and improper notice of her intention to close the business and she claims that she is entitled to pay in lieu of notice.

CA-00055744-004:  Complaint under the Organisation of Working Time Act 1997

The complainant claims that she is entitled to pay in lieu of her accrued annual leave from the date that she commenced maternity leave on September 11th 2021 until March 13th 2022 when she was due to return to work and from then until November 26th 2022, when she was absent due to illness.

CA-00055744-005:  Complaint under the Organisation of Working Time Act 1997

The complainant claims that she is entitled to pay in lieu of public holidays not taken from the date that she commenced maternity leave on September 11th 2021 until March 13th 2022 when she was due to return to work and from then until November 26th 2022, when she was absent due to illness.

The respondent did not attend the hearing and did not send a representative.

CA-00055744-001:  Complaint under the Redundancy Payments Act 1967

As she was an employee of the respondent from May 7th 2019 until the salon closed on November 26th 2022, the complainant has completed more than two years of service and she is entitled to a statutory redundancy payment in accordance with the rules on reckonable service set out in Schedule 3 of the Redundancy Payments Act 1967. 

CA-00055744-003:  Complaint under the Minimum Notice Act 1973

Although she considers the WhatsApp message to be an inappropriate method of giving her notice that the salon was closing, section 4 of the Minimum Notice Act requires an employer to “give” an employee the requisite notice depending on their length of service and there is no legal obligation for this notice to be given in writing.  I am satisfied that, on October 15th 2022, the complainant was notified that her employment would cease due to redundancy on November 26th 2022 and that, based on her service of less than five years, she was given more that the requisite two weeks of notice to which she was entitled.

CA-00055744-004:  Complaint under the Organisation of Working Time Act 1997

The complainant was on maternity leave from September 11th 2021 until March 13th 2022, during which time she accrued annual leave and public holidays.  She did not take her holidays before she went on sick leave on March 14th 2022 and her employment ended on November 26th.

On the day that she was due to return from maternity leave, March 14th 2022, the complainant was entitled to take the holidays that she accrued from September 11th 2021 until March 13th 2022.  She did not take these holidays, because she commenced a period of sick leave and, due to illness, she had not returned to work when the salon closed on November 26th 2022.  She submitted this complaint to the WRC on March 27th 2023.  Section 41(6) of the Workplace Relations Act 2015 sets out the time limits for submitting complaints to the WRC:

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.

Subsection 8 provides that, for reasonable cause, I may extend the time limit to 12 months.  I accept that the complainant could not have anticipated that her employment would end due to redundancy and I am satisfied that, as she submitted her complaint to the WRC on March 27th 2023, I have jurisdiction to consider her entitlement to holidays in the 12 months prior to that date.

Accrual of Holidays During Maternity Leave

As her maternity leave ended on March 14th 2022, more than 12 months before she submitted this complaint to the WRC, I have jurisdiction to consider the complainant’s entitlement to holidays in the leave year from January to December 2022 and I have no jurisdiction to consider any entitlement that she did not avail of during 2021.

I find therefore, that, on the date that she submitted this complaint to the WRC, the complainant had an outstanding entitlement to holidays that accrued while she was on maternity leave during 2022.  As she was a part-time worker and, as she was contracted to work less than 1,365 hours a year, in accordance with section 19(1)(c) of the Organisation of Working Time Act 1997 (“the OWT Act”), she is entitled to the equivalent of 8% of her normal working hours as holidays.

January 1st – March 13th 2022:  (10 weeks x 24 hours) @ 8% = 19 hours’ holidays

Accrual of Holidays During Sick Leave

In 2006, the decisions of the Court of Justice of the European Union (CJEU) in case C-350/2006, Schultz-Hoff v Deutsche Rentenversicherung Bund[1]and case C-520/2006, Stringer and Others v. Her Majesty’s Revenue and Customs[2]resulted in a finding that the accrual of annual leave based on attendance at work was incompatible with Article 7 of the Working Time Directive and that the Directive allows for the accrual of annual leave during periods of absence due to illness.

To bring the treatment of holidays in Ireland into line with the jurisprudence of the CJEU, the new section 19(1A) of the OWT Act changed the law in relation to the accrual of annual leave.  The Act now provides that annual leave is accrued during periods of absence due to illness:

(1A) For the purposes of this section, a day that an employee was absent from work due to illness shall, if the employee provided to his or her employer a certificate of a registered medical practitioner in respect of that illness, be deemed to be a day on which the employee was -

(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.

At the hearing, the complainant said that she submitted medical certificates to the respondent when she was unable to work from March 14th 2022 until November 26th 2022.  In the absence of any contradicting evidence from the respondent, I must accept this as fact.

Section 23(1) of the OWT Act sets out how employees are to be compensated for annual leave not taken when their employment ends.  

(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) and (ii) are not relevant to this complaint.)

(iii) in relation to a cessation of employment of an employee to whom subparagraph (iii) of the said paragraph (c) applies, (this refers to Section 20(1)(c)(iii) of the OWT Act) that occurs during the first 12 months of the period of 15 months referred to in the said subparagraph (iii) -

(I) the current leave year, and

(II) the leave year immediately preceding the current leave year[.]

As this employee was absent due to illness only in the leave year in which her employment ended, the remainder of this section is not relevant to her complaint.  Section 23(1) above provides that she is entitled to pay for all the holidays that accrued from the commencement of her absence due to illness on March 14th 2022 until the termination of her employment on November 26th 2022.

March 14th – November 26th 2022:  (37 weeks x 24 hours) @ 8% = 71 hours

CA-00055744-005:  Complaint under the Organisation of Working Time Act 1997

In relation to the timeframe within which I have jurisdiction to consider this complaint about pay for public holidays, I must follow the same approach that I took when considering the complainant’s claim for untaken annual leave. 

Accrual of Public Holidays During Maternity Leave

As she submitted this complaint to the WRC on March 27th 2023, I have jurisdiction to consider the complainant’s claim for the benefit of public holidays that accrued during her maternity leave from January 1st until March 13th 2022.  I must conclude therefore, that she is entitled to the benefit of the public holiday that fell on January 1st 2022.  As she worked three days every week, she is entitled to three fifths of a day’s pay in respect of this public holiday.

Accrual of Public Holidays During Sick Leave

Section 21(4) of the OWT Act excludes from the benefit of a public holiday, an employee who has not worked for their employer in the previous five weeks.  Section 21(1) is the section that sets out the entitlement to public holidays and section 21(4) provides that 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.

As the complainant did not work for her employer in the five weeks ending on the day before any of the public holidays that fell between March 14th and November 26th 2022, find, that she has no entitlement to the benefit of the public holidays that fell during her absence on sick leave.

CA-00055744-001:  Complaint under the Redundancy Payments Act 1967

I decide that this complaint is well founded and that the complainant is entitled to a statutory redundancy payment in respect of her employment with the respondent from May 7th 2019 until November 26th 2022, subject to the rules on reckonable service set out in Schedule 3 of the Redundancy Payments Act 1967.

CA-00055744-003:  Complaint under the Minimum Notice Act 1973

I decide that this complaint is not well founded.

CA-00055744-004:  Complaint under the Organisation of Working Time Act 1997

I decide that this complaint is well founded and that the complainant is entitled to pay for 90 hours of annual leave, based on 19 hours that accrued while she was on maternity leave between January 1st and March 13th 2022 and for 71 hours that accrued when she was on sick leave from March 14th until November 26th 2022.  As her wages were €360 for working 24 hours a week, the complainant’s hourly rate of pay was €15.00.  I direct the respondent to pay the complainant compensation of €1,350 (€15.00 x 90 hours).  

CA-00055744-005:  Complaint under the Organisation of Working Time Act 1997

I decide that this complaint is well founded and that the complainant is entitled to three fifths of a day’s pay in relation to the public holiday that fell on January 1st 2022.  As her daily rate of pay was €120.00, I direct the respondent to pay the complainant compensation of €72.00.

Redundancy, minimum notice, accrued holidays