ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00047095
Parties:
| Complainant | Respondent |
Parties | Tracey Ryan | Rinocloud Ltd |
Representatives | Appeared In Person | No Appearance by or on behalf of the Respondent |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00058048-002 | 02/08/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00058048-003 | 02/08/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00058048-004 | 02/08/2023 |
Date of Adjudication Hearing: 08/07/2024
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015, Section 6 of the Payment of Wages Act , 1991, Section 27 of the Organisation of Working time Act , 1997 and Section 12 of the Minimum Notice and Terms of Employment , Act , 1973 , following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints .
Background:
On August 2, 2023, the Complainant, a Scientific Skincare Advisor and Lay Litigant submitted three complaints to the WRC. On 8 August 2023, the Respondent was notified of these complaints at the business address provided by the complainant. On 15 August the Complainant clarified that she had received her pay slip and her last month wages, the latter aspect was a component in her first complaint. On 18 August 2023, the notification of the complaints was returned to WRC and marked “gone away “. On 21 September 2023, the complaint was requested to clarify in light of her earlier confirmation of progress, whether she sought to withdraw any. The WRC directed that in the absence of withdrawal, the case would proceed. On 23 April 2024 once more, notification of interparty correspondence was returned from the Respondent address marked “unknown at this address “ On 15 May 2024, both Parties were invited to hearing scheduled for 8 July at 10 am in Cork. On 21 May 2024 this notification was returned from the respondent business address and marked as “gone away “ On 27 June 2024, in the absence of any outline submissions from either party, I wrote to the parties seeking. “I now require an outline submission on the circumstances of your case complete with any documents you wish to rely on “ I did not receive a response from either party. The Complainant was the sole attendee at the hearing of July 8, 2024.
At the conclusion of this hearing, I requested a record of the contract of employment and pay slips to seek to establish a documentary connection between the complainant and this employment.
I received the requested documents. However, my request to review the CEO of Parent company email which was attributed as carrying the “ inability to pay “ message was not furnished .
The Complainant took the affirmation to accompany her evidence at hearing. |
Summary of Complainant’s Case:
The Complainant was employed as a Scientific Skincare Advisor from 19 November 2021 to 31 July 2023. She worked full time, 40 hours per week in return for €6666.67 gross salary monthly. The Complainant presented as a Litigant in person and outlined that she had been employed by Rino cloud ltd, a company with 10 employees in Ireland. There were 30 employees in the UK. The Company was associated with a UK Company, Lab skin which was based in York. The Complainant reported to a Marketing Manager who was made redundant at the end of 2022. The CEO of Rino cloud ltd was Fionan Murray, listed as a Director on the complaint form. By the end of 2022, the company was “financially rocky “but stabilised in the aftermath of some redundancies. By the end of June 2023, the Complainant recalled that the company was in “big trouble “and she was placed on notice of cessation but was assured pay and annual leave would be paid. By the end of July, there was no pay, no answers or no explanation. Set against the uncertainty and lack of clarity, she was unable to sign on for job seekers benefit. The Complainant submitted that the Head of Service in UK tried to help but refused to explain what was happening. The Complainant submitted that Mr Murray called her from his annual leave during August 2023 and said everything would be sorted but that did not follow through. Another associated company was now using the company office as the Complainant maintained that this Company had bought Rino cloud ltd. The Complainant outlined that she was made redundant on 31 July 2023.
CA-00058048-002 annual leave The Complainant clarified that she had received payment for €5144.14 as wages originally claimed and was not proceeding with this aspect for the claim. The claim stood as €2572.07 nett in unpaid annual leave. The Complainant submitted that she was given an understanding prior to the conclusion of her employment through redundancy that wages, and annual leave would not be met “as the company had no funds “ This message seemed to arrive from the CEO of the parent company and not Rino cloud, ltd the subsidiary. The Complainant submitted that she had availed of 5 annual leave days and was owed 9 .5 days on cessation of employment. She accepted that this was a duplicate claim to CA-00058048 -003 and withdrew the claim. CA-00058048-003 annual leave This was a duplicate claim with CA-00058048-002, for accrued but untaken annual leave at the cessation of the employment. The Complainant submitted that she had availed of 5 annual leave days and was owed 9 .5 days on cessation of employment. These days remained outstanding She told the hearing that she had requested to be placed on “Zoho “system, time management but this did not occur. She had sought this time off from her manager, but this was refused. The Complainant had gone on to find new work. The Complainant confirmed that she had received €5144.14 in outstanding pay and was claiming 9.5 days accrued but untaken annual leave at the conclusion of her employment, the figure claimed of €2, 572.07 was described as a nett figure. The Complainant referred to an email received from the CEO of the parent company. This email was purported to carry information on the company’s stated inability to pay and her complainant was requested to submit this email and did not furnish it.
CA-00058048-004 Minimum Notice This claim was withdrawn at hearing |
Summary of Respondent’s Case:
There was no appearance by or on behalf of the Respondent at hearing. No defence has been filed. All attempts to secure the presence of the Respondent at hearing were unsuccessful as all correspondence was returned from the business address. |
Findings and Conclusions:
I have been requested to reach a Decision in one complaint at this juncture.
That is CA-00058048-003 on cesser pay.
The remaining two claims have been withdrawn.
My jurisdiction arises from Section 23 of the Organisation of Working Time Act, 1997.
Compensation on cesser of employment.
23.—(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) in relation to a cessation of employment of an employee to whom subparagraph (i) of paragraph (c) of subsection (1) of section 20 applies, the current leave year,
(ii) in relation to a cessation of employment of an employee to whom subparagraph (ii) of the said paragraph (c) applies, that occurs during the first 6 months of the current leave year—
(I) the current leave year, and
(II) the leave year immediately preceding the current leave year,
(iii) in relation to a cessation of employment of an employee to whom subparagraph (iii) of the said paragraph (c) applies, 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,
or
(iv) in relation to a cessation of employment of an employee to whom subparagraph (iii) of the said paragraph (c) applies that occurs during the final 3 months of the period of 15 months referred to in the said subparagraph (iii) —
(I) the current leave year, and
(II) the 2 leave years immediately preceding the current leave year.
In arriving at my decision, I have regard for the Respondent absence from hearing which I deem to be unreasonable.
I have also had regard for the complainants’ submitted documents alongside her uncontested affirmation at hearing.
CA-00058048-003 Organisation of Working Time Act, 1997
The complainant has described a very unusual employment relationship.
The CRO lists Rinocloud ltd as a private company limited by shares, whose status is normal. The Company was registered on 22 April 2016 and the registered address is at the IDA Industrial Estate, Charleville, where all inter party correspondence was sent for their attention.
I find that the failure by the Respondent to engage in this statutory claim to be unreasonable. I find the evidence adduced by the complainant to be cogent and find this company avoidant on the topic of their obligations to conclude the employment relationship in accordance with the terms of the contract and Irish law.
A careful perusal of the contract signed by the complainant but not the employer on 8 November 2021 has a different registered office than that at the Companies Registration Office. Given that this post dated the company registration by 6 years, I find this to be misleading.
Section 13 of this contract addresses holidays which for some unexplained reason are amalgamated with public holidays to an accumulated 31 working days per year.
Both of these rights are derived from separate sections of the Act and should be stratified in any contract.
1 annual leave is governed by Sections 19 and 20 of the Act
2 public holidays are governed by Section 21 of the Act
The Respondent is on proof of records of annual leave in this case. Section 25(4) refers.
No records have been forthcoming. The Complainant told the hearing that she carried a contractual entitlement to 25 days annual leave. The contract reflects a 21-day entitlement. I must work on the contractual term.
I accept the uncontested evidence that the complainant had accrued 9.5 days annual leave which remained untaken on the cessation of employment.
I find that the Respondent has failed to prove that the leave was taken.
The last pay slip dated 31 July 2023 is silent on the topic of annual leave. I did not have the benefit of the CEO of parent company memorandum in email formation. I did request it.
I would also have liked to have seen both parties advance this dispute in accordance with the contractual grievance policy. however, I have given some weighting to the abrupt ending to the employment.
I find the claim is well founded.
CA-00058048-002 This claim was withdrawn at hearing CA-00058048-003 Organisation of Working Time Act, 1997 CA-00058048-004 This claim was withdrawn at hearing |
Decision:
CA-00058048-003 Annual Leave Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act. Section 27 of the Organisation of Working Time Act 1997 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 19 and 20 of the 1997 Act. I have found the claim well founded. I order the Respondent to comply with the provisions of Section 23 of the Act as compensation for cessation of employment (accrued but untaken annual leave). I award compensation of €3166.66 as just and equitable in respect of the contravention of Section 23 of the Act. |
Dated: 07-08-2024
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Key Words:
Annual leave, Section 23, cesser pay. |