Complainant

Respondent

Parties

Varvara  Goneou

Moon Quality Foods Ltd.

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00051582-001

05/07/2022

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

CA-00051582-002

05/07/2022

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

CA-00051582-003

05/07/2022

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

CA-00051582-004

05/07/2022

The Complainant was employed as an Assistant Store Manager in the health food store run by the Respondent company from 1 September 2021 to 30 April 2022. She stated that she did not receive payment for her bank holidays or her annual leave during her employment. Additionally, she claimed that she did not receive any premium payments for working on Sundays and that she was not paid her minimum notice.

The Complainant stated in the first instance that she did not receive any premium pay for working on every Sunday throughout her employment. She also added that she did not receive any holiday pay or compensation for public holidays during her employment.

Furthermore, the Complainant asserted that despite the Respondent closing the shop where she worked on 2 May 2022, while she was on holiday, she did not receive the minimum notice entitlements to which she was legally due.

The Respondent did not attend the hearing to give evidence and failed to provide any submission in advance.

CA-00051582-001:

The Complainant accepted that she was always paid the minimum wage and accordingly withdrew this complaint.

CA-00051582-002:

Section 14(1) of the Organisation of Working Time Act, 1997 states the following:

14.—(1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely—

(a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or

(b) by otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances, or

(c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or

(d) by a combination of two or more of the means referred to in the preceding paragraphs.

Having considered the uncontradicted evidence provided by the Complainant, who stated that she worked every Sunday during her employment with the Respondent but did not receive any premium payment for these days, I find that this complaint is well-founded.

CA-00051582-003:

The Complainant stated that she did not receive any annual leave pay or payment for public holidays over the course of her employment

(i)                  Annual Leave entitlements

The Law

Article 7 of the Working Time Directive (2003/88/EC) sets out the entitlement to paid annual leave as follows:

“Annual Leave 1.  Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice.  2. The minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is ended.”    

This provision is transposed into Irish lay by virtue of the enactment of Sections 19, 20 and 23 of the Organisation of Working Time Act.

Section 19 of the Organisation of Working Time Act 1997 outlines that an employee’s annual leave entitlement is based on the amount of time that they have worked during the year as is calculated in three ways:

(a)   4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment).

(b)   One-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c)    8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Section 20 (1) deals with the times at which annual leave is granted to an employee and this is determined by the employer subject to a number of provisions:

(a)   The employer taking into account-

(i)               The need for the employee to reconcile work and any family responsibilities,

(ii)              The opportunities for rest and recreation available to the employee.

(b)   To the employer having consulted the employee or the trade union (if any) of which he or she is a member, not later than one month before the day on which the annual leave or, as the case may be, the portion thereof concerned is due to commence, and

(c)    To the leave being granted within the leave year to which it relates or, with the consent of the employee, within 6 months thereafter.

(2) The pay in respect of an employee’s annual leave shall –

(a) be paid to the employee in advance of his or her taking the leave,

(b) be at the normal weekly rate or, as the case may be, at a rate which is proportionate to the normal weekly rate, and ….”

Findings:

The Complainant is seeking payment for annual leave for the period for which she worked for the Respondent from 1 September 2021 to 30 April 2022.

Given that the complaint was referred to the WRC on 5 July 2022, the period to submit a complaint regarding alleged contraventions related to annual leave is six months from the end of the statutory leave year, which runs from 1 April to 31 March each year. Therefore, the Complainant is entitled to seek compensation for all the annual leave she was not paid since she began working with the Respondent on 1 September 2022.

Having considered her uncontradicted evidence, I find that the complaint in respect of non-payment of annual leave is well founded.

(ii)                Public Holiday entitlements

Section 21(1) of the Organisation of Working Time Act, 1997 states that:

(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.

As the Complainant referred this complaint to the WRC on 5 July 2022, I note that the public holidays that she was entitled to and which fell within the cognisable period were 17 and 18 March 2022, 18 April 2022 and 2 May 2022.

Having regard to the uncontradicted evidence given by the Complainant that she did not receive payment for the above-mentioned public holidays, I find that this complaint is well founded. 

CA-00051582-004

Section 4 of the Minimum Notice and Terms of Employment Act, 1973, states: 

(1)    An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section. 

(2)    The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be –

(a) if the employee has been in the continuous service of his employer for less than two years, one week, 

(b) if the employee has been in the continuous service of his employer for two years or more but less than five years, two weeks 

c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks, 

(d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks, 

Based on the uncontradicted evidence provided by the Complainant, I am satisfied that she did not receive her minimum notice entitlements. Consequently, I find this complaint to be well-founded. Specifically, considering her length of service, which exceeded thirteen weeks but was less than two years, she is entitled to one week's notice.

CA-00051582-001:

This complaint was withdrawn.

CA-00051582-002:

Section 27(3) of the Organisation of Working Time Act, 1997 states the following:

(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.

This complaint is well founded for the reasons set out above. Having regard to the provisions of section 27 (3) set out above and recognising that the Complainant did not receive a premium payment in respect of any of the Sundays on which she worked with the Respondent, I make an award in the amount of €2,500 in respect of this complaint.

CA-00051582-003:

This complaint is deemed well-founded for the reasons set out above. Initially, I grant an award of €3,000 for the unpaid annual leave, which also incorporates a compensation component in accordance with section 27(3) of the Act mentioned earlier. Additionally, I grant an further award of €1,000 for the unpaid public holidays, which also includes a compensation element as per section 27(3) of the Act cited above.

Therefore, I issue an overall award of €4,000 in respect of this complaint for the Respondent's failure to remunerate the Complainant for annual leave and public holidays, as outlined above, considering it just and equitable.

CA-00051582-004:

I find that the complaint is well founded for the reasons set out above. Consequently, the Complainant is entitled to receive compensation amounting to €540 regarding this complaint, which corresponds to one week's standard pay.