Complainant

Respondent

Parties

Joanna  Dylong

Grzegorz Sleczka

Complainant

Respondent

Representatives

  Self-represented.

 The respondent did not attend.

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-00038759-001

16/07/2020

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

CA-00038759-002

16/07/2020

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

CA-00038759-003

16/07/2020

The complainant has submitted three complaints; one under the Redundancy Payments Acts 1967 -2014), and a further two complaints under the Organisation of Working Time Act, 1997.

The complainant was employed by the respondent as a sales assistant in the respondent’s delicatessen shop from 3/3/2014 to the 24/11/2019, when the Respondent closed the business due to financial losses, and she was made redundant.

She worked twenty hours a week for which she was paid €207 gross.

She submitted her complaint to the WRC on 16 July 2020.

CA-00038759-001. Complaint under Section 39 of the Redundancy Payments Acts, 1967-2014.

The complainant stated that the respondent advised her in late October 2019 that owing to financial losses, he was planning to close the business. He advised her that his accountant would organise her redundancy payment. The shop closed at the end of October 2019.

She was employed from 3/3/2014 to the 24/11/2019.

She requested the respondent to pay her redundancy entitlements on several occasions, but the respondent did not pay the lump sum or any sum to her as required by section 19 of the Act of 1967 as amended.

CA-00038759-002. Complaint under section 27 of the Organisation of Working Time Act, 1997.

The complainant is claiming accrued annual leave in respect of the period of maternity leave and certified sick leave extending from the 1 March – 31 December 2017. The respondent did not reckon these periods for purposes of annual leave. The complainant stated that she did not recall receiving her statutory leave entitlement in respect of the leave year 1/4/2018 – 31/3/19

She stated that she could not remember if she received her annual leave entitlement in respect of the year 1/4/2019 – 31/3/2020. She had not expected to be asked these questions.

CA-00038759-003.Complaint under section 27 of the Organisation of Working Time Act, 1997.

The complainant states that the respondent did not pay her for eight public holidays in 2014, 9 public holidays in the years 2015-2018 or for seven public holidays in 2019.

Her complaint was lodged on 16/7/2020. The complainant asked that time be extended to admit this complaint as Covid- 19 restricted her and she could not source assistance during this time.

CA-00038759-001. Complaint under Section 39 of the Redundancy Payments Acts, 1967-2014.

The respondent thought notified of the hearing neither attended nor was represented.

The respondent submitted a document dated 5/10/2020, apologising for the fact that the complainant had to refer a complaint to the WRC, but his financial losses prevented him from making a payment in accordance with the provisions of the Redundancy Payments Acts, 1967-2014.

CA-00038759-002. Complaint under section 27 of the Organisation of Working Time Act, 1997.

The respondent thought notified of the hearing did not attend.

CA-00038759-003. Complaint under section 27 of the Organisation of Working Time Act, 1997.

The respondent thought notified of the hearing did not attend.

The respondent submitted a document dated 5/10/2020, stating that this complaint was unfounded and that all public holidays were paid in full to the complainant.

CA-00038759-001. Complaint under Section 39 of the Redundancy Payments Acts, 1967-2014.

Based on the uncontested evidence, I find that this is a redundancy within the ambit of the Redundancy Payments Acts, 1967-2014.

I find that the complainant is entitled to a redundancy lump sum payment pursuant to the Redundancy Payments Acts 1967 -2014, in accordance with the following details:

Date of commencement of employment: 3/3/2014

Date of termination of employment:        24/11/2029

Gross weekly pay:                                     €207

This award is made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

CA-00038759-002. Complaint under section 27 of the Organisation of Working Time Act, 1997.

I must decide on the complainant’s claim for annual leave in respect of the period 1 March – 29 May 2017 when she was on certified sick leave, and for annual leave in respect of the period 30 May 2017 – 27 November 2017 when she was on maternity leave. Before doing so, I note that the complainant could not recall what she received in respect of the 2018-2019 and 2019-2020 leave years. I find this to be speculative as opposed to a complaint of an actual contravention of the Act of 1997.

Accrual of annual leave while on sick leave.

Following on the Court of Justice of the European Union ruling in Stringer and Others v H.M. Revenue & Customs [C-520/06] and Schultz-Hoff [C-350/06], Section 86 (1) of the Workplace Relations Act 2015 amended section 19 of the Organisation of Working Time Act 1997 to provide for the accrual of annual leave while an employee is on sick leave. However, the accrued leave must be taken within 15 months of the relevant leave year ending (the leave year during which the employee is on sick leave).  The relevant leave year Is the 1 April 2017- 31 March 2018.  Fifteen months on from 31 March 2018 is 30 June 2019.

On the basis that the accrued leave was not taken within the prescribed limits as set out above, I do not find that the complainant’s entitlement to accrued leave survived beyond 30 June 2019.

The complainant submitted her complaint to the WRC on 16 July 2020.

I do not find this element of her complaint to be well founded.

Accrual of leave while on maternity leave.

The complainant also seeks leave in respect of the period spent on maternity leave which ran from 30 May 2017 – 27 November 2017. The complaint was lodged with the WRC on 16/7/2020. The matter for decision is whether the complainant can include the untaken annual leave in the calculation of cesser pay at the end of her employment on the 24 November 2019. This matter was considered in A facilities coordinator v A baker, ADJ 19188 which concerned payment of cesser pay in lieu of the untaken annual leave accumulated by that employee during his employment. The adjudication officer noted that

“Cesser pay is only payable at the end of employment and not during employment. Any contravention in not paying cesser pay can only arise at the end of the employee’s employment.”

Section 41 (6) of the Workplace Relations Act 2015 states

“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”.

The contravention complained of is the respondent’s failure to pay the complainant her accrued annual leave entitlement on the 24 November 2019. The complaint was lodged on the 16 July 2020. The complaint is clearly out of time.

Section 41(8) of the Act of 2015 does provide for an extension of time of a further 6 months where an adjudication officer

“is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause”.

 The complainant was notified of a time issue in relation to complaint numbered CA-00038759-003 and requested an extension based on the fact that she could not source assistance while Covid-19 restrictions were in force. This, she states, constitutes reasonable cause.

The test for determining reasonable cause was formulated by the Labour Court in Cementation Skanska and Carroll,DWT0338 in the following terms: -

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time”

Firstly, Covid -19 restrictions on services did not kick in until the 14 March 2020. These same services offering telephone advice continued to function albeit in a reduced capacity during Covid-19. Most significantly, the complainant presented no evidence of approaching any agency or service for advice or of any refusal to provide said advice.

I do not find that the complainant meets the test laid out in Skanska for an extension of the time limits.

I find that I do not have jurisdiction to hear this complaint.

 CA-00038759-003. Complaint under section 27 of the Organisation of Working Time Act, 1997.

The complainant states that the respondent did not pay for eight public holidays in 2014, 9 public holidays in the years 2015-2018 or for seven public holidays in 2019.

The complainant’s employment ended on 24 November 2019. The complainant lodged her complaint on 16 July 2020 which is outside of the six months limitation period specified in section 41(6) of the Workplace Relations Act 2015 and eight and a half months distant from the last public holiday (31 October 2019), for which she could claim payment.

The complainant asks that I exercise section 41(8) of the Act of 1997 in her favour. The complainant cites Covid -19 and the difficulty of accessing advice during this period as evidence of reasonable cause for the delay.

The test for determining reasonable cause was formulated by the Labour Court in Cementation Skanska and Carroll, DWT0338 in the following terms: -

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time”

Firstly Covid -19 restrictions on services did not kick in until the 14 March 2020. These same services offering telephone advice continued to function albeit in a reduced capacity during Covid. Most significantly, the complainant presented no evidence of approaching any agency or service for advice or of any refusal to provide said advice.

I do not find that the complainant meets the test laid out in Skanska for an extension of the time limits.

 I find that I do not have jurisdiction to hear this complaint.

CA-00038759-001. Complaint under Section 39 of the Redundancy Payments Acts, 1967-2014.

I find that the complainant is entitled to a redundancy lump sum payment pursuant to the Redundancy Payments Acts 1967 -2014, in accordance with the following details:

Date of commencement of employment: 3/3/2014

Date of termination of employment:        24/11/2019

Gross weekly pay:                                     €207

This award is made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

CA-00038759-002. Complaint under section 27 of the Organisation of Working Time Act, 1997.

I find that I do not have jurisdiction to hear this complaint.

CA-00038759-003. Complaint under section 27 of the Organisation of Working Time Act, 1997.

I find that I do not have jurisdiction to hear this complaint.

Entitlement to redundancy payments; lack of jurisdiction to hear OWT complaints.