ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00048066
Parties:
| Complainant | Respondent |
Parties | Laura Conway | Beautique Beauty Studio Limited |
Representatives |
| Michelle Kerslake – Director
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Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00057997-001 | 31/07/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00057997-002 | 31/07/2023 |
Date of Adjudication Hearing: 12/12/2023
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or complaints. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered.
In particular, the Complainant herein has referred two complaints:
The Complaints herein relate to contraventions of The Organisation of Working Time Act 1997 and in particular to a contravention under Section 19 of the Act which sets out those circumstances which give rise to annual leave entitlements. So that an Employee becomes entitled to Annual leave equal to:
4 weeks in a leave year in which the Employee has worked 1365 or more.
1/3 of a working week in each month that the Employee has worked in excess of 177 hours.
8% of the hours worked up to 4 working weeks.
Pursuant to Section 27 of the Organisation of Working Time Act 1997 (as amended), a decision of an adjudication officer as provided for under Section 41 of the Workplace Relations Act shall do one or more of the following:
- (i) Declare the complaint was or was not well founded;
- (ii) Require the Employer to comply with the relevant provision;
- (iii) Require the employer to pay to the employee compensation of such amount as is just and equitable having regard to all the circumstances but not exceeding 2 years remuneration.
The Adjudication Officer must be aware of applicable time limits and in this regard, the Workplace Relations Act specifies at Section 41 (6) that (subject to s.s.8) an Adjudication Officer shall not entertain a complaint referred to said Adjudication Officer after the expiration of the period of six months beginning on the date of the contravention to which the Complaint relates.
Section 41 (8) specifies that the Adjudication Officer may entertain a Complaint or dispute to which section 41 applies after the expiration of the six month period referred to in ss. (6) and (7) – though not later than a further six months after the initial expiration as the case may be - if the 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 has specifically specified that she was not compensated for the loss of her annual leave which had accrued but not been taken, when she left the place of work.
Background:
This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing. The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 31st of July 2023. The Complaint form needed amending as the Complainant had not specified that she required the Adjudication and not the Inspection services. In line with the Workplace Relations (Miscellaneous Provisions) Act, 2021 which came into effecton the 29th of July 2021 and where there is the potential for a serious and direct conflict in the evidence between the parties to a complaint, it is open to me to direct that all parties giving oral evidence before me, to swear an oath or make an affirmation as may be appropriate. In the interests of progressing this matter, I confirm that I have in the circumstances administered the said Oath/Affirmation as appropriate. It is noted that the giving of false statements or evidence is an offence. |
Summary of Complainant’s Case:
The Complainant was not represented and made her own case. At the outset, the Complainant was happy to swear an Oath. The Workplace Relations Complainant Form came with a statement from the Complainant concerning her position. I was provided with supplemental documentary evidence in support of the Complainant’s case. No objection was raised to any of the materials relied upon by the Complainant in making her case. The Evidence adduced by the complainant was challenged as appropriate by the Respondent Representative. The Complainant alleges that she was not paid annual leave in the course of her employment and on her departure from the employment. The Complainant also believed she was owed monies for public holidays. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Summary of Respondent’s Case:
The Respondent entity was represented by the Director Michelle Kerslake. The said Director gave evidence on Oath. The Respondent provided me with paperwork on the 23rd of November 2023. No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making its case. All evidence was heard following an Affirmation. The Respondent was questioned by the Complainant. The Respondent rejects that there continues to be a liability for Annual leave or public holiday entitlements. The Respondent does not accept any contravention of Employment Rights as protected by statute. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Findings and Conclusions:
I have carefully listened to the evidence adduced by both sides to the within complaints. The Complainant came to work for the Respondent beauty salon in September of 2019. By March 2020 the salon had, of course, closed down for a period of time by reason of Covid. The Complainant worked through 2020, 2021 and 2022. The Complainant worked for about 20 hours per week at a rate of somewhere between €13.00 and €15.00 per hour (€300.00 per week). There had been a nine-month period of Maternity leave between January and September 2022. The Complainant had decided towards the end of 2022 that she wanted to move on, and she handed in her Notice. The Complainant’s last day was due to be the 31st of December 2022. The Complainant believed that as the 31st of December date she would have been due a considerable lump sum for untaken annual leave. The Complainant gave evidence that her hours of work were recorded on the salon software system and that she would not regularly receive payslips though she confirmed that if she asked for the payslips, they were available. The Complainant gave evidence that she engaged with her Employer in the January of 2023 for the purpose of obtaining the monies she says she was owed. To her surprise, her Employer denied that there was money owing and in fact the suggestion was that the Employer had from time to time overpaid the Complainant. The Employer does appear to have accepted that there was an underpayment for 2019 and a cheque in the sum of €191.00 was dispatched to the Complainant on the 27th of January 2023. The Complainant did not accept that this constituted an accurate quantum for the amount she was owed. The Complainant returned the cheque. The Complainant was very angry with this Employer. The Complainant believed she had been underpaid and undervalued. The Respondent witness gave comprehensive evidence in defence of her position and that of her salon. The witness denied that the software system had or could be tampered with. The hours worked were readily calculated and the Complainant was paid pro rata based on that. The Witness indicated that if the Complainant asked to go home early from her shifts (when the salon was unexpectedly quiet) she was welcome to go but the hours of non-attendance were automatically deducted on the system. This witness gave evidence that Public Holiday liability was rolled into Annual leave liability and that this fact might not have been fully clear to the Complainant. It accounted for why the Public Holiday liability was not always identified. The system only clearly marked Christmas as a Public Holiday. The witness went through the hours worked for each of the years that the Complainant was engaged. The witness conceded that there was a shortfall in the amount of €191.00 which had been sent to and returned from the Complainant. The witness was happy to confirm that she would re-issue this cheque. It is noted that the Complainant received the aforementioned cheque in the amount of €191.00 on the 22nd of January 2023. This is an important date as it might be the date on which the Complainant might be expected to have knowledge of the fact that an issue has arisen regarding an alleged shortfall in payment. The Complainant should, therefore, have issued her complaint within six months of that date. The workplace relations complaint form did not issue until the 31st of July 2023 and is therefore out of time. As and Adjudicator, I cannot hear or entertain any complaint referred to the WRC under Section 41 of the Workplace Relations Act of 2015 if it has been presented after the expiration of a six-month period beginning on the date of the contravention (as set out in Section 41(6) of the Act). The Act (at Section 41(8)) does allow for an exception where I can extend that period to twelve months if a Complainant can demonstrate that that the failure to present the complaint within the first six-month period (after the contravention) was due to reasonable cause. When she was asked about the period after her departure from the Respondent company, the Complainant confirmed that she hoped that the parties might resolve the issue. The Complainant did not therefore initiate a claim before the WRC until after the expiration of the six-month time limit. As previously stated, as an Adjudicator I cannot hear or entertain any complaint referred to the WRC under Section 41 of the Workplace Relations Act of 2015 if it has been presented after the expiration of a six-month period beginning on the date of the contravention (as set out in Section 41(6) of the Act). The Act (at Section 41(8)) does allow for an exception where I can extend that period to twelve months if a Complainant can demonstrate that that the failure to present the complaint within the first six-month period (after the contravention) was due to reasonable cause. This will not exceed a twelve-month period. It is long established through judicial interpretation that if a complaint is out of time it fails to satisfy a condition precedent and therefore cannot be said to have been lawfully referred to the receiving body. When the complaint is out of time, it is not lawfully before the Adjudicator unless the Complainant can satisfy the Adjudicator that that there is a reasonable cause to explain the delay. The onus rests with the Complainant to establish through evidence the reasonable cause for the delay. The Labour Court, in Cementation Skanska v Carroll DWT0338 28/10/2003, considered the issue of “reasonable cause” in the context of a similar provision to S.41(8) contained in the Organisation of Working Time Act, 1997 Section 27(5): “Not withstanding subsection (4) a Rights Commissioner may entertain a complaint under this section presented to him or her after the expiration of the period referred to in subsection (4) (but not later than 12 months of such expiration) if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause” The Labour Court went on to state: “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 and excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not 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.” The Complainant has not been able to show me that there are reasons which both explain the delay and afford and excuse for the delay. The Complaints herein fail as being out of time. |
Decision:
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.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00057997-001 - The complaint is not well founded in circumstances where the complaints were lodged out of time. Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00057997-002 - The complaint is not well founded in circumstances where the complaints were lodged out of time.
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Dated: 30-01-2024
Workplace Relations Commission Adjudication Officer: Penelope McGrath
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