Complainant

Respondent

Parties

Nina Sheehy

Danu Fettle & Fare Limited

Representatives

  N/A

 N/A

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00055463-001

08/03/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00055463-002

08/03/2023

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

CA-00055463-003

08/03/2023

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

CA-00055463-004

08/03/2023

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

CA-00055463-005

08/03/2023

On 20 June 2022, the Complainant commenced work as a Manager for the Respondent, a café/shop. The Complainant earned €15 gross per hour, working approximately 30 − 40 hours per week. Shortly after joining, she realised that her role was not well-defined and that, in her view, she held more of an Assistant Manager role. The Complainant’s employment ended on 11 September 2022. The Complainant filed her Complainant Form on 8 March 2023, bringing a number of complaints and seeking adjudication under: section 7 of the Terms of Employment (Information) Act 1994 as amended; section 6 of the Payment of Wages Act 1991 as amended; and section 27 of the Organisation of Working Time Act 1997 as amended.

At the outset of the Hearing, the Complainant explained that the Respondent has since closed. According to the Companies Online Registration Environment (“CORE”), the Respondent continues to trade and so it was appropriate for me to hear these complaints.

The Complainant outlined that she worked approximately 30 − 40 hours per week, from Wednesday to Sunday inclusive. She earned €15 gross per hour.

The Complainant outlined that she been very excited about her new role as Manager, when she started. The Respondent was a café/shop which sold health food, smoothies, juices and some sandwiches. Most of the business was takeaway, however, there was a small seating area where customers could have their food. The Respondent was a new business and the Complainant was one of the first five members of staff to work there. The Complainant worked alongside the owner.

The Complainant outlined that the Respondent was always short-staffed. She also outlined that her role was not well-defined and that, in her view, she held more of an Assistant Manager’s role rather than a Manager’s role. For example, she wasn’t permitted to do the rota or order stock. Instead, she counted stock every day.

The Complainant outlined that she received her pay for the actual hours that she worked. The Complainant outlined that she never received any payslips after 12 August 2022. The Complainant outlined that her employment ended on 11 September 2022 and that she received her last payment on 26 September 2022, by way of bank transfer. The Complainant outlined that this last payment did not include payment for any annual leave which she had accrued.

By way of documentary evidence, the Complainant provided payslips dated 1 July 2022; 8 July 2022; 15 July 2022; 22 July 2022; and 12 August 2022.

CA-00055463-001: Complaint under the Terms of Employment (Information) Act 1994:

The Complainant outlined that she never received a written contract of employment. She outlined that any information regarding her hours and salary were provided to her verbally and that she had received nothing in writing. The Complainant assumed that she would be given a contract after a couple of weeks, but this did not happen. The Complainant outlined that a Workplace Relations Commission (“WRC”) representative came to the premises in July 2022 and raised queries regarding her contract, with the owner. The Complainant later raised the issue of her contract with the owner. The owner indicated that she would not provide a contract before an employee had worked for the Respondent for at least six months.

CA-00055463-002: Complaint under the Payment of Wages Act 1991 – Accrued Annual Leave:

The Complainant withdrew this complaint as it was a duplicate complaint.

CA-00055463-003: Complaint under the Organisation of Working Time Act 1997 – Accrued Annual Leave:

The Complainant outlined that during her period of employment, she did not take any annual leave. She outlined that on approximately two occasions, she was given a day off when it was quiet. She was alerted to this on the roster, which was available to staff in an online app. The Complainant outlined that she had never requested those two days off. The Complainant outlined that her last payment did not include payment for any annual leave which she had accrued. The Complainant outlined that she is seeking compensation for the annual leave which she accrued during her period of employment.

CA-00055463-004: Complaint under the Organisation of Working Time Act 1997 – Public Holidays:

The Complainant outlined that the Respondent was closed on Mondays. However, she believed that she was entitled to bank holiday pay for Monday 1 August 2022.

CA-00055463-005: Complaint under the Organisation of Working Time Act 1997 – Sunday Working:

The Complainant outlined that during her period of employment, she worked every Sunday, bar four. She outlined that she did not receive any compensation for working on those Sundays. She is seeking compensation for working on seven Sundays: 26 June 2022; 10 July 2022; 24 July 2022; 31 July 2022; 14 August 2022; 21 August 2022; and 28 August 2022. The Complainant outlined that when the WRC representative came to the premises in July 2022, the issue of compensation for Sunday working was raised with the owner.

The Respondent did not attend the Hearing as scheduled.

In a letter from the WRC dated 24 May 2023, the Respondent was informed of the date, time and venue of the Hearing. The letter also set out the procedure regarding postponement requests.

When the Respondent did not attend the Hearing on 21 June 2023, a grace period was allowed to enable the Respondent to attend or contact the WRC.

In the circumstances, I am satisfied that the Respondent was on notice of the Hearing and had sufficient opportunity to attend.

Cognisible Period:

The Law:

Section 41(6) of the Workplace Relations Act 2015 (the “WRA”) provides:

“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.”

Findings and Conclusion:

The Complainant commenced work on 20 June 2022. Her last day of work was 11 September 2022. She filed her Complaint Form on 8 March 2023. In accordance with the six-month time limit prescribed under section 41(6) of the WRA, the cognisible period is from 9 September 2022 until 8 March 2023.

CA-00055463-001: Complaint under the Terms of Employment (Information) Act 1994:

The Law:

The Terms of Employment (Information) Act 1994, as amended, (the “TE(I)A”) sets out the basic terms of employment which an employer must provide to an employee in written form. Section 3(1A) of the TE(I)A obligates an employer to provide employees with certain essential information, or core terms, in writing within five days of commencing employment.

Section 7 of the TE(I)A provides that compensation up to a maximum of 4 weeks’ remuneration may be awarded if a complaint is deemed well founded. In Beechfield Private Homecare Limited v. Ms Megan Hayes Kelly, TED 1919, the Labour Court awarded the maximum of four weeks’ remuneration. Here the Chairman of the Court noted “[i]n determining the appropriate level of compensation it should award in a particular case, the decisionmaker must take into account all therelevant circumstances of the case before it. In this case, the Court determines that the breaches were at the serious end of the spectrum …”.

Findings and Conclusion:

The Complainant was employed by the Respondent from 20 June 2022 until 11 September 2022. The Complainant outlined that she was not provided with any information whatsoever required under the TE(I)A. Consequently, the Respondent breached section 3(1A) of the TE(I)A and the complaint is well founded.

Pursuant to section 7 of the TE(I)A, an award of two weeks’ remuneration by way of compensation is just and equitable in the circumstances: 2*(€15*40) = €1,200.

CA-00055463-002: Complaint under the Payment of Wages Act 1991– Accrued Annual Leave:

This complaint was withdrawn by the Complainant as it was a duplicate complaint.

CA-00055463-003: Complaint under the Organisation of Working Time Act 1997 – Accrued Annual Leave:

The Law:

Pursuant to section 19(1) of the Organisation of Working Time Act 1997, as amended, (the “OWTA”), an employee is entitled to the following paid annual leave:

“(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).

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.”

In Waterford City Council v. Mr. Stephen O’Donoghue, DWT0963, the Labour Court held:

“The only leave year which is cognisable for the purpose of determining if an employee received his or her statutory entitlement is that prescribed by the Act itself, that is to say a year starting on 1st April and ending on 31st March the following year. While different arrangements may be put in place for administrative purposes, in determining if a contravention of the Act occurred that Court can only have regard to the leave allocated to an employee in the statutory period.”

Section 23 of the OWTA provides for the payment of compensation to the employee for loss of annual leave on cessar of employment.

Section 27 of the OWTA empowers an adjudication officer to do one or more of the following:

“(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.”

Findings and Conclusion:

The Complainant submitted her Complaint Form to the WRC on 8 March 2023. Section 2 of the OWTA provides that the “leave year” is any year beginning on 1 April. In this matter, the relevant leave year runs from 1 April 2022 until 31 March 2023. In accordance with the six-month time limit prescribed under section 41(6) of the WRA, the cognisible period for this complaint is from 9 September 2022 until 8 March 2023.

From 20 June 2022 until 11 September 2022, a period of almost three months, the Complainant accrued approximately five days’ annual leave (1.67 *3). The Complainant outlined that she did not take any annual leave during her period of employment and that on cessar of employment she did not receive any payment for her accrued annual leave.

I am satisfied that this non-payment constitutes a contravention of section 23 of the OWTA. I consider it just and equitable, having regard to all of the circumstances, to direct the Respondent to pay the Complainant €800 by way of compensation for this contravention.

CA-00055463-004: Complaint under the Organisation of Working Time Act 1997 – Public Holidays:

The Law:

Full-time employees have immediate entitlement to benefit for public holidays. Pursuant to section 21 of the OWTA, an employee is entitled to:

“(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.”

Findings and Conclusion:

In accordance with the six-month time limit prescribed under section 41(6) of the WRA, the cognisible period for this complaint is from 9 September 2022 until 8 March 2023. The Complainant is seeking compensation for the public holiday which fell on Monday 1 August 2022. As this date falls outside the cognisible period, this complaint is not well founded. 

CA-00055463-005: Complaint under the Organisation of Working Time Act 1997 – Sunday Working:

The Law:

Pursuant to section 14(1) of the OWTA, an employee who is required to work on a Sunday is entitled to be compensated, in the following ways:

“(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.”

The OWTA does not entitle the employee to any set rate of compensation. An employee will not be entitled to compensation for Sunday working if the fact of having to work on a Sunday is already reflected in their standard pay, see e.g. Trinity Leisure Holdings Limited t/a Trinity City Hotel v. Sofia Kolesnik and Natali Alfimova, [2019] IEHC 654. There is no evidence pertaining to this complaint which indicates that compensation for Sunday working was reflected in the Complainant’s standard pay.

Findings and Conclusion:

In accordance with the six-month time limit prescribed under section 41(6) of the WRA, the cognisible period for this complaint is from 9 September 2022 until 8 March 2023. The Complainant is seeking compensation for Sunday working on: 26 June 2022; 10 July 2022; 24 July 2022; 31 July 2022; 14 August 2022; 21 August 2022; and 28 August 2022. As these dates fall outside of the cognisible period, this complaint is not well founded.

CA-00055463-001: Complaint under the Terms of Employment (Information) Act 1994:

For the reasons outlined above, this complaint is well founded and I order the Respondent to pay the Complainant €1,200 by way of compensation.

CA-00055463-002: Complaint under the Payment of Wages Act 1991:

This complaint was withdrawn.

CA-00055463-003: Complaint under the Organisation of Working Time Act 1997:

For the reasons outlined above, this complaint is well founded and I require the Respondent to pay the Complainant €800 by way of compensation.

CA-00055463-004: Complaint under the Organisation of Working Time Act 1997:

For the reasons outlined above, this complaint is not well founded.

CA-00055463-005: Complaint under the Organisation of Working Time Act 1997:

For the reasons outlined above, this complaint is not well founded.

Terms of Employment (Information) Act 1994, Organisation of Working Time Act 1997, Cognisible Period, Non-attendance.