Complainant

Respondent

Parties

Patricia Lizbeth Oropeza Vedia

Juliet O'Connell Limited

Trading as The Zip Yard Dun Laoghaire

Representatives

Self-represented

Self-represented

Act

Complaint 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-00054912-002

07/02/2023

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

CA-00054912-003

09/08/2023

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

CA-00054912-004

19/03/2023

The respondent is a business engaged in clothing alterations and repairs.  In addition, it provides a curtain-making and soft-furnishing design service.  The complainant is a Bolivian national and she came to Ireland in May 2019 on a student visa.  She is a technician in pattern-making and dressmaking and she has a university qualification in interior design.  In July 2019, in accordance with her student visa, she looked for a part-time job with the respondent. 

The respondent was looking for someone to work full-time and the complainant said that she accepted a full-time position, on condition that she could get an employment permit.  On August 12th 2019, she and the respondent had a meeting with a person they thought was a solicitor, in a firm called “THL Legal.”  The complainant provided a copy of an invoice which shows that the respondent paid THL Legal €1,500 for help with a work permit application.  The invoice is extremely suspect, with misspellings, very poor layout and an indication that the company has offices in “Dublin, Kildare and Cape Town.”  By November 2019 there was no progress with the work permit and the complainant discovered that THL Legal is a fake law firm.  A warning notice on the website of the Law Society of Ireland dated October 7th 2019 states that the company is not authorised and that named individuals associated with the business are not on the roll of solicitors.

The complainant said that she was distressed when she discovered that she was working illegally.  She said that the respondent brought her to a Garda station to report that THL Legal is a fake law firm.  The respondent then introduced her to a solicitor who could speak Spanish, who helped her with an application for an emergency extension of her student visa.  She said that she paid the solicitor €1,045 for this “emergency card.”

In March 2019, with the onset of the Covid-19 pandemic, the respondent’s shop was closed and the complainant had no work.  She said that she was afraid to apply for the Pandemic Unemployment Payment (“PUP”) because she hadn’t got an employment permit.  She ran out of money and, in October 2020, the solicitor who helped her to apply for the emergency visa advised her to apply for the PUP.  Her application was successful and she received the PUP from October 27th 2020 until May 25th 2021, a total of 30 weeks.

In December 2020, with the assistance of the solicitor, the complainant applied for an employment permit, based on a job offer from the respondent as a “business development interior designer.”  The application for the permit is accompanied by a letter of offer from the respondent in which she stated, “This role will give you the opportunity to earn €35,000 including performance-related bonuses.”  A contract provided to the complainant around the same time states that the salary for the job is €30,000 and there is no reference to bonuses.  The application form also states that the salary is €30,000, equivalent to €576.92 per week.  The respondent paid the solicitor €950 which the complainant said she paid back.  The fee for the permit is €1,000, which the complainant paid to the Department of Enterprise, Trade and Employment. 

On February 2nd 2021, the complainant received an employment permit granting her permission to take up the job of business development interior designer with the respondent with effect from February 11th 2021 for two years.  She provided a copy of the permit which shows that her employer was Juliet O’Connell Limited and that her weekly pay was €576.92.  When some of the Covid-19 restrictions were lifted, on May 10th 2021, the complainant returned to work for the respondent.

In January 2023, the complainant applied to renew her employment permit, again, based on a job offer from the respondent.  The annual salary in the renewal application form is stated to be €32,000 (€615.38 per week).  At the end of January, the complainant said that she received an email from the Department of Enterprise, Trade and Employment in which she was informed that her application was refused.  The reason given was that the weekly pay recorded in her Revenue returns for the previous two years was less than €576.92, and not in accordance with the wages stated on the December 2020 visa application.  The complainant resigned from her job on February 7th 2023, because she said that she was afraid that she would be deported if she was found to be working illegally.  She said that her passport wouldn’t have been in date for long enough to apply for a visa and she applied instead for a re-activation of her employment permit.

On the form she submitted to the WRC on February 7th 2023, the complainant submitted a complaint under the Terms of Employment (Information) Act 1994.  She grounds this complaint on her case that, while the statement of her terms and conditions shows that she was employed as an interior designer, she ended up doing two jobs, because she worked at the shop counter and did repairs and alterations as well as interior design work.  On March 19th 2023, she wrote to the WRC and requested permission to add a complaint regarding holidays and payslips.  The law regarding the entitlement of employees to payslips is set out at s.4 of the Payment of Wages Act 1991; however, complaints under this heading are dealt with by the Inspection Service of the WRC.

Arising from the refusal of the complainant’s application to renew her employment permit, an inspector from the WRC visited the respondent’s premises.  The respondent confirmed that an inspection was carried out and that an enforcement notice was issued.  On the date of this hearing on August 9th 2023, the respondent had not taken any action regarding the enforcement notice and, in her evidence, Ms O’Connell said that she was waiting for guidance from the WRC regarding the inspection and the adjudication processes.

The complainant gave evidence that, in 2022, she did not get all the holidays to which she was entitled, that she worked overtime for which she was not paid and that she didn’t get always get breaks during her working day.  Before the hearing ended, I informed the respondent and the complainant that, in addition to the original complaint under the Terms of Employment (Information) Act 1994, I intended to add a complaint under the Payment of Wages Act 1991 and a complaint under s.19 of the Organisation of Working Time Act 1997 concerning annual leave.  I am satisfied that the respondent was on notice of these complaints and, after the hearing, I gave her time to submit any further evidence that she considered was useful for her to make a full response. 

In response to the complainant’s evidence, Ms O’Connell said that, although she has records of the complainant’s hours of work, she didn’t bring them to the hearing.  I offered her an adjournment to give her an opportunity to submit the working time records, and she declined, saying that she would send them to the WRC after the hearing.  The complainant had records on a USB stick, which, for security reasons, could not be downloaded to a computer at the WRC.  On August 11th 2023, I sent a copy of the USB stick to Ms O’Connell.  I asked Ms O’Connell to send me copies of the complainant’s hours of work records, payslips and any other information that she considered might be helpful to my investigation.  On August 30th, wrote to me and said that she was suffering from stress because of the WRC investigation and that she had been advised not to attend a resumed hearing.  With her letter, she included a spreadsheet which she said is a record of the complainant’s hours of work for 2021, 2022 and until her last day at work on February 4th 2023. 

On September 18th 2023, the complainant sent the case officer a copy of an email she received from a WRC inspector four days earlier.  The inspector informed the complainant that her former employer calculated arrears of wages over a 12-month period amounting to €4,076.  The inspector asked the complainant to provide details of her bank account so that the money could be paid to her.  The complainant replied saying that she attended an adjudication hearing at the WRC on August 9th, that she wanted to wait for a decision from the adjudicator.

On September 19th, the complainant replied to the documents sent by the respondent and she submitted a copy of her own records, which, she said, are based on logbooks held in the shop where she worked.  She said that the respondent has the logbooks and that she scanned the pages so that she would have a record of the hours she worked.  The complainant said that she examined the records submitted by Ms O’Connell against the logbook records and she pointed out a number of discrepancies during 2021, where she claimed that the hours that she worked are not recorded.  On September 21st, the complainant sent a further document, to highlight the discrepancies in her recorded hours of work and holidays taken in 2021 and 2022.  Ms O’Connell replied on September 29th with further clarification of the complainant’s hours of work and holidays in 2021 and 2022.

On November 13th 2023, Ms O’Connell sent an email to the WRC to inform me that the contravention notice from the WRC inspectorate had been updated to reflect the fact that the complainant’s work permit was based on a 39-hour week and, for the duration of her employment, the complainant was required to work for 40 hours.  Ms O’Connell said that the inspector had determined that the total amount owed to the complainant was €4,800.71.

To reach the conclusions set out below, I have considered the initial complaint form submitted on February 7th 2023, the evidence of the parties at the hearing on August 9th 2023, and the documents submitted by the complainant and the respondent after the hearing and up until November 13th 2023.

Section 41(6) of the Workplace Relations Act 2015 sets out the timeframe within which complaints may be submitted for adjudication:

“…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.”

Section 41(8) permits that, “for reasonable cause” I may extend the time limit to 12 months.  The complainant is not a native English speaker and has no experience of navigating the complexities of employment law.  She had no money to engage a solicitor and she relied on friends for advice.  She was in a very precarious situation when she worked for the respondent, not having an employment permit and then being laid off during Covid-19.  For the duration of 2022, she relied her employer to support her in her application for an extension of the permit granted in January 2021 and I can understand why she didn’t submit a complaint while she was employed.  When she was refused an extension to her employment permit, she immediately resigned and submitted a complaint to the WRC under the heading of the Terms of Employment (Information) Act 1994.  I have decided that the complainant had a reasonable explanation for not submitting a complaint to the WRC any sooner than she did.  Having reached this conclusion, I will consider her claims that her employer was in contravention of the relevant employment rights legislation between February 8th 2022 up to her last day at work on February 4th 2023.

CA-00054912-002:  Complaint under the Terms of Employment (Information) Act 1994

In addition to her job as an interior designer and seamstress, the complainant claims that she had to do reception duties at the counter in the respondent’s shop.  She said that went to customers’ houses to measure up for curtains.  When she was in the shop, doing alterations and making curtains, she had to look after customers and the counter, to examine and price work.  She said that she felt pressurised to do the additional work, and she was afraid that if she didn’t co-operate, her work permit would be withdrawn.  She said that she got no additional pay for doing two jobs.

CA-00054912-003:  Complaint under the Payment of Wages Act 1991

The statement of terms and conditions issued to accompany the complainant’s application for an employment permit states that her annual salary was €30,000, equivalent to €576.92 per week.  The complainant said that she didn’t get a payslip for every week that she worked; however, she provided copies of payslips for 14 of the 25 weeks between August 11th 2022 and February 2nd 2023.  On each of these 14 weeks, she was paid €460.00 gross, equivalent to an annual salary of €23,920.

Prior to the hearing on August 9th 2023, the complainant sent copies of “Employment Detail Summary” documents she received from the Revenue Commissioners concerning her earnings in 2021 and 2022.  In accordance with the time limit restriction, I have examined the summary for 2022.  This shows that, in that year, the complainant earned €23,880 gross.  The hours of work summary provided by the respondent shows that the complainant was on holidays for the first four weeks of 2022 and that, for the remainder of the year, she was at work every week. 

From the correspondence sent to me by the respondent, I understand that the WRC inspector identified a discrepancy between the 40-hour week that the complainant worked and the standard working week of 39 hours which is a condition of her work permit.  The effect of this is that she was underpaid by one hour for each week that she worked for the respondent.

On the hours of work documents provided by the complainant, she recorded that, in the week commencing May 16th 2022, she worked for 48 hours, but she was paid for 40 hours.  On Saturday, July 16th, she worked for five hours to make up for four hours that she didn’t work on July 7th, resulting in one hour for which she was not paid.  In the week commencing October 17th, she worked for 48 hours, with no pay for the additional eight hours.  In the weeks commencing November 1st and 7th, she worked four additional hours.  The complainant submits that she worked for 21 hours for which she received no wages and that these hours should be paid as overtime.  She also recorded sick leave of five hours which she has offset against the extra hours worked and she therefore claims 16 hours of overtime pay.

CA-00054912-004:  Complaint under the Organisation of Working Time Act 1997

Complaint Concerning a Breach of Section 19 of the Act – Annual Leave

In reply to a request to take holidays, at the end of November 2021, the respondent wrote to the complainant approving holidays to be taken from December 3rd until the 11th.  In her letter, the respondent informed the complainant that this left her with nine days to carry over into 2022.  The effect of this is that she had an entitlement to 29 days’ holidays for the leave year 2022.  The complainant took 19 days’ holidays from January 4th to 28th.  The respondent’s summary shows that she took one days’ holidays on October 28th.  In the complainant’s evidence, she said that she was also on leave on October 29th.  It is the complainant’s case therefore, that, in 2022, she benefited from 21 days’ holidays out of her entitlement to 29 days, leaving her with eight days’ holidays not taken.  She also claims an entitlement to holidays accrued from January 1st until February 4th 2023. 

Complaint Concerning a Breach of Section 12 of the Act – Breaks at Work

In her evidence, the complainant said that she didn’t get a break during the working day and that it took a year of writing emails until the respondent allowed her to take breaks.  She said that her sign-in book disappeared.  On the schedule of her hours of work that she submitted at the hearing, she highlighted over 60 days that she worked at the shop counter while she also did her other work and she said that, “on some days, I did not have a break.”

Complaint Concerning a Breach of Section 21 of the Act – Public Holidays

At the hearing, the complainant said that she worked on some of the public holidays, and that she received no extra pay and no additional time off.  In the period under consideration for this complaint, she provided no records of the public holidays on which she claims that she worked.

In her evidence at the hearing, the respondent said that she has documents which show that these complaints are without substance, including records of the hours that the complainant worked.  She showed me a document on her phone which she referred to as a “contravention notice” from the inspection service of the WRC which, she said, shows that she is obliged to pay the complainant the difference between the wages stated on her contract and the wages she was paid.  She said that she is confused about how the inspection service and the adjudication service operate and she is seeking guidance before she responds to the contravention notice.

The respondent said that she thought that the first solicitor she engaged to deal with the complainant’s application for an employment permit was legitimate.  She became concerned when the permit didn’t materialise and she reported THL Legal to the Gardaí and to the Department of Justice.  She then said that she got in touch with another solicitor who speaks Spanish.  She thought that, when this solicitor got an emergency visa for the complainant that it was okay for her to work. 

The respondent said that she understands that the complainant has a university degree as an interior designer.

In March 2020, the respondent said that she closed her shop and laid off her staff.  She opened up on June 21st 2020, but closed again on October 24th until November 30th 2020.  The shop was closed again from January 10th until May 10th 2021.  The respondent said that she gave her employees details about how to apply for the PUP.

The respondent said that she was very worried about the risk that the complainant might be deported, and that she was her “number one priority.”  Even though her shop was closed, the respondent said that she continued to do some business on the interior design side.  The complainant did curtain measurements and making, piping and filling cushions.  She said that the job offer to the complainant was related to that business, but that the complainant offered to do other work.  She said that her obligation was to report the complainant when she was without a work permit, but she said that she helped her.

Section 3 of the Terms of Employment (Information) Act (“the 1994 Act”) was amended on December 16th 2022 by the European Union (Transparent and Predictable Working Conditions) Regulations 2022.  As the complainant legally commenced working for the respondent in February 2021, I must consider this complaint in accordance with the legislation that applied at that time.  This provides that, within two months of the commencement of an employee’s employment, they should receive a written statement providing certain information regarding their terms and conditions of employment.  Section 3 was amended by the Employment (Miscellaneous Provisions) Act 2018, resulting in a new obligation on employers to provide particular information to employees within five days of their start date.

Information to be confirmed in writing to the employee within five days of commencement:

(a)  The name of the employer and the employee;

(b)  The address of the employer;

(c)  If the contract is temporary, the expected duration, or if the contract is for a fixed-term, the end date of the fixed-term;

(d)  The rate or method of calculation of wages and the pay reference period for the purposes of the National Minimum Wage Act 2000;

(e)  The daily and weekly hours that the employee is expected to work.

This remaining information is to be provided within two months of commencement:

(f)  The place of work, or, where there is no fixed place of work, the statement must specify that the employee is required to work at various places;

(g)  The job title or the nature of the work that the employee is required to carry out;

(h)  The date that the employee commences in the job;

(i)  Details of any collective agreement which affects the employee’s terms and conditions of employment and information about where the employee can get a copy of any such agreement;

(j)  That the employee may, under section 23 of the National Minimum Wage Act 2000, request from the employer a written statement of his or her average hourly rate of pay for any pay reference period as provided in that section;

(k)  The pay frequency, whether weekly or monthly or some other frequency;    

(l)  Any terms or conditions relating to hours of work (including overtime);

(m)  Any conditions relating to paid leave (other than paid sick leave);

(n)  Any terms or conditions relating to –

       (i)  Incapacity for work due to sickness or injury and paid sick leave;

       (ii)  pensions and pension schemes;

(o)  The notice that the employee is required to give and the notice that he or she is entitled to receive at the termination of employment;

(p)  A reference to any collective agreements which directly affect the employee’s terms and conditions, including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

Aside from the requirement of an employer to provide information to an employee within five days of their commencement date, when the complainant was employed by the respondent, she was entitled to a statement or statements containing the information set out at subsections (a) to (p) above.

At the hearing, the complainant provided me with copies of three versions of a “Statement of Main Terms and Conditions of Employment.”  The first was given to her in November 2020, when she applied for a work permit.  It is unclear when the second version was issued and I understand that the third version was issued to her in anticipation of her employment permit being renewed in February 2023.  I can see no difference between the first and second statements and the only difference in the third document is that the complainant’s wages were to be increased from €30,000 to €32,000.  I will therefore consider this complaint by reviewing the document provided to the complainant in November 2020, based on a conclusion that these terms applied to her from the legal commencement of her employment on February 9th 2021 until her resignation on February 7th 2023.

Findings

In the document issued to her in November 2020, the complainant’s job is described as “business development interior designer.”  Her responsibilities are given as:

“Reporting to Juliet O’Connell your prime area of responsibility will be the management and control of the day to day working of the soft furnishings / interior design department and the growth / development of the department as a main channel of business for the Zip Yard Dun Laoghaire.

It is envisaged that you will be a key mentor of the team in conjunction with Juliet.  You will be encouraged and supported to develop and implement your ideas and methods to maintain and improve the Company standards.”

It is the complainant’s case that, for half of the days that she worked for the respondent in 2022, she worked on the counter in the shop, while, at the same time, she worked on clothing alterations and curtains in the back of the shop.  In this regard, I find that the statement is not in compliance with s.3(g) of the 1994 Act, in that the job title is not accurate and the duties as they are set out do not accurately reflect the work that the complainant was required to do.

In breach of ss.3(d) and (k), the statement provides no details of the method or frequency of pay.

In breach of s.3(h), the document does not show the date on which the complainant commenced in the job.

From the complainant’s perspective, the most serious breach of the 1994 Act was in the impression given in her Statement of Terms and Conditions of Employment that she was an interior designer, “engaged in the management and control of the soft furnishing / interior design department.”  From her evidence at the hearing, it is apparent that she worked for half of her time as a counter assistant and seamstress.  She has records of all the repairs and alterations that she worked on from May 10th 2021 until she resigned in the first week of February 2023. 

It is my view that the description of the complainant’s job as an interior designer fails to explain the reality of her role in the respondent’s business, which was to do look after the customers at the counter on days that the shop had no counter assistant.  In considering complaints of this nature, the Labour Court has rejected any defence that such breaches are minimal or technical in nature.  I intend therefore, to follow the authority of the Court, particularly in the case Felix Guerrero v Merchants Arch Company Limited, DWT 188, and to make an award to the complainant equivalent to three weeks’ wages.

Wages Properly Payable

At the hearing on August 9th 2023, the respondent gave evidence that a WRC inspector investigated a complaint regarding the complainant’s wages.  After the hearing, on September 29th 2023, she wrote to the WRC to inform us that, arising from the investigation, she was ordered to make a payment to the complainant of €4,800.  She said that she was waiting for the complainant to agree to a payment plan to comply with the contravention notice.  From the correspondence submitted by the complainant, I understand that the WRC inspector asked her to provide her bank details so that the money owed could be paid to her.  The complainant replied and said that she wanted to deal with just one investigation by the adjudication service. 

The inspection service and the adjudication service of the WRC are separate and information is not shared.  The evidence given by the respondent was that she was ordered to pay the complainant €4,800 in compensation for paying her less wages than the wages agreed in her statement of terms and conditions of employment and for requiring her to work 40 hours a week instead of 39.

Section 5(6) of the Payment of Wages Act 1991 addresses the circumstances in which wages which are properly payable are not paid:

(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

From this, we understand that, where wages are properly payable, the failure of an employer to pay such wages is a breach of s.5 of the Payment of Wages Act.  I am satisfied that the complainant was not paid the wages that were properly payable for the entire duration of her employment with the respondent; however, I am limited in my enquiry to the period from February 8th 2022 until February 4th 2023.

Findings

The Revenue record submitted by the complainant shows that, for the 12 months ending on December 31st 2022, she was paid €23,880.  The document issued to her by the respondent as a statement of her terms and conditions of employment shows that her annual salary was €30,000 and the salary shown on her application for an employment permit is also €30,000.  The complainant had a selection of payslips which show that, on 14 weeks between August 11th 2022 and February 4th 2023, she was paid €480.00 per week, instead of €576.92 (€30,000 / 52).

I must accept that the Revenue record is correct and that the complainant was paid an average of €459.23 per week from January 1st until December 1st 2022.  Her payslips for the first five weeks of 2023 show that she was paid €480.00 gross per week.  Based on this information, I find that, for the period for which I have jurisdiction to enquire into this matter, the complainant received the following weekly wages:

February 8th until December 31st 2022 (47 weeks):  €459.23

January 1st until February 4th 2023 (5 weeks):  €480.00

Total gross wages in the 52 weeks under consideration:  (459.23 x 47) + (480.00 x 5) = €23,984

From this, I conclude that, in the period in question from February 8th 2022 until February 4th 2023, there was a shortfall of €6,016 gross in the wages properly payable to the complainant (30,000 – 23,984).

From the evidence of both parties, I am satisfied that the complainant worked for 40 hours every week, despite the condition of her employment permit that she was to work 39 hours a week.  The complainant was at work every week during the period for which I have jurisdiction to make an enquiry, from February 8th 2022 until February 4th 2023.  She took two days’ holidays on October 28th and 29th 2023.  The effect of this is that, for 51 of the 52 weeks that she worked for the respondent, the complainant worked one extra hour for which she was not paid the wages that were properly payable.

Finally, under the heading of the complaint under the Payment of Wages Act, I am satisfied that, during the relevant timeframe, the complainant worked 16 hours’ overtime for which she was not paid.

Conclusion

I have concluded that the complainant is owed €6,016 in wages which were not paid to her in the period from February 8th 2022 until February 7th 2023.

I have concluded also that the complainant is entitled to pay for 67 hours (51 + 16) at an overtime rate of time plus one half.  Her hourly rate of pay of €14.70 results in an overtime rate of €22.00.  The total amount of wages owed in overtime is therefore €1,474 (67 x €22.00).

Based on these findings, the total amount owed to the complainant in wages which were properly payable and not paid is €7,490 gross (€6,016 + €1,474).  Compensation must take account of normal deductions for PAYE, PRSI and USC.  I note from the payslips produced by the complainant that no deductions were made for USC.  For each of the last five weeks of her employment, she paid €30.61 inn tax and €19.20 in PRSI, equivalent to a deduction of 10.5% of her weekly pay.  Based on these deductions, I find that, in respect of compensation for the non-payment of wages properly payable, the complainant is entitled to a net amount of €7,378. 

Complaint Concerning a Breach of Section 19 of the Act – Annual Leave

At the start of 2022, the complainant carried over nine days to add to her statutory entitlement of 20 days’ annual leave.  She took 21 days’ holidays in 2022, leaving her with eight days carried over into 2023.  She was at work for the first five weeks of 2023, during which time she took no holidays, resulting in an entitlement to two more days’ holidays.  Therefore, when she resigned on February 7th 2023, the complainant was entitled to be paid for 10 days’ holidays.  From the evidence on her payslips, I am satisfied that she was not paid for these holidays.

The Organisation of Working Time Act transposes into Irish law the provisions of Directive 2003/88/EC, previously 93/104/EC.  Based on the objectives of Article 31 of the EU Charter of Fundamental Rights on fair and just working conditions, this “framework directive” for occupational safety and health is intended to promote the safety and health of employees and to avoid working conditions that have the potential to cause injury or illness.  At s.19(3) of the 1994 Act, there is a provision that an employee who works for eight months or more in a leave year is entitled to two unbroken weeks of leave.  From January 31st 2022 until she resigned on February 7th 2023, a period of 13 months, the complainant took only two days’ holidays, although she had an entitlement to 10 days leave up to December 31st 2022.  It is evident from her notes in the log books kept in the respondent’s shop that, by the time she resigned on February 7th 2023, she was tired and in need of a break. 

This complaint is not simply about the failure of the respondent to pay the complainant for her outstanding holidays at the termination of her employment, but it concerns a more fundamental breach of the 1994 Act, which is the failure of the respondent to ensure that the complainant availed of the holidays to which she was entitled.

Complaint Concerning a Breach of Section 12 of the Act – Breaks at Work

In her evidence, the complainant said that it took her a year to get agreement from the respondent to take a break during the working day.  It must be the case therefore, that she did not always get lunch breaks in 2021 and that the situation improved in the 12 months prior to her resignation on February 7th 2023.  Section 25 of the Organisation of Working Time Act is clear that it is the responsibility of the employer to maintain hours of work records and that the onus of proving that a provision of the Act was complied with rests with the employer.  While the respondent provided a record of the days on which the complainant worked, she has no record of the complainant’s start and finish times and no record of her breaks.   Similar circumstances were addressed by the Labour Court in Patrycja Kwidzinska v PMC Painting Contractors Limited, DWT 244.  Ms Kwidinska alleged that she did not get lunch breaks and her employer had no working time records.  The chairman, Mr Foley held that, for an employer to respond to such a claim, a complainant must provide some information regarding the frequency and dates on which they were not permitted to take a break.  I have examined the logbooks provided by the complainant for the period from February 8th 2022 until her last day at work on February 4th 2023.  The complainant kept a note of the days that she worked and her start and finish times.  She also kept a note of how much she charged for each alteration and she recorded the days and the portions of days that she worked at the shop counter.  She noted that days that she covered for other employees at the counter and she also noted days that were difficult and days that she wasn’t feeling well.  In the period in question, she did not make a note of any day that she didn’t get a break.

Having examined the complainant’s records, it is my view that any complaint regarding the failure of the respondent to permit her to take a rest break during the working day is outside the time limit for which I have jurisdiction to make an enquiry.

Complaint Concerning a Breach of Section 21 of the Act – Public Holidays

I have examined the records submitted by the respondent and the logbooks submitted by the complainant for the period from February 8th 2022 until February 4th 2023.  I can find no record that the complainant worked on any of the public holidays.

CA-00054912-002:  Complaint under the Terms of Employment (Information) Act 1994

I have decided that this complaint is well founded and I direct the respondent to pay the complainant compensation of €1,731.  As this award is redress for breach of a statutory right, in accordance with s.192A of the Taxes Consolidation Act 1997, it is not subject to deductions for tax, PRSI or USC.

CA-00054912-003:  Complaint under the Payment of Wages Act 1991

I have decided that this complaint is well founded and I direct the respondent to pay the complainant compensation of €7,378.  This is calculated as a net amount and is not subject to any further deductions.

CA-00054912-004:  Complaint under s.19 the Organisation of Working Time Act 1997

I have decided that this complaint is well founded.  Considering the issue of redress, I am guided by the principle established in Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1981 to the effect that, where rights under EU law are infringed, redress should not only compensate for economic loss, but provide a deterrent against future breaches.   I therefore direct the respondent to pay the complainant €1,154 for 10 days’ holidays due on the date of her resignation, plus compensation of the same amount, resulting in total redress €2,308.  As this award is redress for breach of a statutory right, in accordance with s.192A of the Taxes Consolidation Act 1997, it is not subject to deductions for tax, PRSI or USC.

CA-00054912-002:  €1,731                Redress under the Terms of Employment (Information) Act 1994

CA-00054912-003:  €7,378                Redress under the Payment of Wages Act 1991

CA-00054912-004:  €2,308                Redress under the Organisation of Working Time At 1997

Total award:             €11,417

This total award is not subject to any deductions for PAYE, PRSI or USC.

Statement of terms and conditions of employment, payment of wages, employment permit, annual leave