Complainant

Respondent

Parties

Ms Yanzi  Ming

Paris Lover Hair and Beauty

Complainant

Respondent

Anonymised Parties

Representatives

Self-Represented

Ms Roberto Urbun Peninsula Business Services Ireland

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-00061875-001

29/02/2024

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

CA-00061875-002

29/02/2024

This matter came before the Workplace Relations Commission dated 29/02/2024 as a complaint submitted under section 27 of the Organisation of Working Time Act, 1997.  The aforesaid complaint was referred to me for investigation.  A hearing for that purpose was scheduled to take place on 31/05/2024.  

The Complainant at all material times was employed by the Respondent as a nail technician.  The Respondent is a hair, nail and beauty salon.  The Complainant commenced her employment in the Respondent company on 30 November 2023.   Her employment ended on 28 February 2024.    The Complainant was paid €15.00 per hour. 

The Complainant alleges contravention by the Respondent of provisions of the above listed statutes in relation to her employment with the Respondent.

The Complainant provided payslips and numerous transcripts of WhatsApp messages in support of her claim.  The Respondent filed a written submission with the WRC including supporting documentation. 

Post-hearing submissions were requested on one element of the complaint namely in respect of break times which were received and for which I am grateful.  I can confirm for the avoidance of doubt I have considered the content of the supplemental submissions only in the context of further information sought on the specific matter of break times. 

CA-00061875-001

The Complainant alleges as follows relying on the information provided on her WRC complaint form together with information on documentation provided to the WRC further to her complaint form:

1.       I did not receive my paid holiday annual leave entitlement.  Employer refuses to pay holiday pay and refuses to provide the calculation details of holiday pay;

2.       Salary deducted on February 07;

3.       Working for hours without break time;

4.       Unfair layoffs;

5.       Unclear working hours and no arrangements for up to 18 days;

6.       Being treated unfairly. 

CA-00061875-001

The Complainant alleges she was not paid her entitlements to holiday pay.   It is submitted by the Respondent that the Complainant was paid her entitlements to holiday pay by a postal order she never picked up.   The Respondent submits she has endeavoured to keep the Claimant and other employees in employment as such operates on varied hours depending on availability and bookings. 

The Complainant has and is aware of her obligation to be flexible in relation to her hours of work.  

The Respondent submits that at no time was the Complainant required to work less hours than available as per her bookings that depend highly on customers satisfaction.  The Respondent submits the Complainant has failed to particularise any alleged instances of the alleged breach.

The Complainant alleges she was not placed in the appropriate band of hours.  The Respondent submits the Complainant has never requested to be placed in any specific band.  The Respondent submits nor has the Complainant requested an amendment to the band of hours in which she is placed.  The Respondent submits due to rapidly fluctuating demand, it was not possible to anticipate any changes that might occur in relation to the Complainant’s working hours. 

CA-00061875-001/2

In conducting my investigation and in reaching my decision, I have reviewed the relevant submission and supporting documentation presented to me.   I have carefully considered the oral evidence adduced at hearing.  I deemed it necessary to make my own inquiries into the complaint several times during hearing to establish and understand the facts and to seek clarification on certain matters. 

Gaining an understanding of events as they evolved during the tenure of the Complainant’s employment with the Respondent proved difficult having regard to the fact that English is not the first language of either the Complainant or the Respondent.  I greatly appreciate the assistance of the interpreter provided by the WRC in my endeavours to gain an understanding of the issues on the day of hearing. 

Based on my own inquiries and by way of background I note the Complainant is here in Ireland on a student visa.  I note this allows the holder of such a visa to take up casual employment of up to 20 hours per week in term time or up to 40 hours per week during college vacation periods namely from June to September inclusive and from 15 December to 15 January. 

The Respondent representative confirmed the Complainant is on what she termed a zero hours contract.  I note zero hours working practices refers to practices where an employee is either asked to be available for work, without the guarantee of work, or where the employee is informed there will be work available on a specified day or days.   

On requesting if I could see said contract it appears there is none.   The Complainant submits in her written submission she was never provided with employee details such as hours of work or a contract.  The Respondent concedes the Complainant was not issued with a contract and reaffirms  that this (zero hours) is the type of contract under which the Complainant is employed. 

When considering and determining on the Respondent’s failure to provide a contract of employment to the Complainant I am guided by the Superior Courts where it has been held that statutory adjudicative bodies should not adopt a more stringent procedural approach than that adopted in ordinary litigation.  I note in particular in the case of County Louth VEC v. Equality Tribunal [2009 IEHC 370] where the High Court held as follows:

“If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then, a fortiori, it should also be permissible to amend a claim as set out in a form such as an originating document before a statutory tribunal, so long as the general nature of the complaint remains the same.” 

I am satisfied if a fact is referred to in the written submissions which correlates with a cause of action not selected on the complaint form that the Respondent has been afforded the opportunity to deal with this matter as it was clearly set out in the Complainant’s submission that she was not provided with a contract.  I am satisfied there is no prejudice served upon the Respondent.     

I determine this complaint is properly before me as the narrative is clearly set out in the Complainant submission (at 5.1) filed with the WRC and the Respondent suffers no prejudice on the basis the fact is clearly referred to in the written submissions and correlates with a cause of action albeit not selected on the complaint form.   

For the reasons set out above, as the Workplace Relations Complaint form is not a statutory form, I deem it appropriate in the interests of fairness to add a complaint under the Terms of Employment (Information) Act, 1994.

The Relevant Law

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

Section 3 (1) provides that an employer must provide an employee with a written statement of terms of employment within one month of commencement of employment. 

The Relevant Facts

The Complainant asserts she did not receive a contract of employment and this assertion is not denied by the Respondent.  The Respondent accepts there was no contract of employment.   Accordingly, I find this complaint is well-founded.  In the circumstances I decide it is just and equitable to require the Respondent to pay to the Complainant compensation of €1,200.00 for a breach of a statutory right. 

This award is by way of compensation for a breach of the Complainant’s statutory right and is not in respect of remuneration including arrears of remuneration. 

Turning now to the specific complaints pursuant to the Organisation of Working Time Act, 1997, I will address them hereunder in the sequence in which they are set out above.  I will consider complaint 1 and 2 together due to the nature of the overlap between them.

1.       I did not receive my paid holiday annual leave entitlement.  Employer refuses to pay holiday pay and refuses to provide the calculation details of holiday pay;

The Relevant Law Annual Leave

The Organisation of Working Time Act, 1997 at section 19 provides as follows:

Entitlement to annual leave.

19.—(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

(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):

The Relevant Facts

It was apparent a significant degree of confusion existed about the matter of what the Complainant referred to as “holiday pay” vis a vis paid annual leave entitlement.  I am now satisfied having clarified my understanding of this at hearing that the Complainant, when she refers to “holiday pay” in fact means payment for public holidays [emphasis added].  Both matters had been conflated and required distinction and separation in order to examine her specific complaint. 

Annual Leave Entitlement

In this regard I note in particular the Complainant’s payslip of 18/02/2024 in the amount of €220.32 gross in the context of the Complainant’s annual leave entitlement.  I note the basis on which this was calculated with a balance brought forward from 2023 of €126.30 which was the added on to the annual leave accrued in 2024 in the amount of €94.02.  The basis on which this was calculated is compliant with section 19(1)(c) set out above. 

I am satisfied the Complainant was paid her accrued annual leave entitlement on 18/02/2024. 

Therefore, I find this element of the complaint is not well-founded.     

The Relevant Law Public Holidays

The Organisation of Working Time Act, 1997 at section 19 provides as follows:

Entitlement in respect of public holidays.

21.—(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.

(2) An employee may, not later than 21 days before the public holiday concerned, request his or her employer to make, as respects the employee, a determination under subsection (1) in relation to a particular public holiday and notify the employee of that determination at least 14 days before that holiday.

(3) If an employer fails to comply with a request under subsection (2), he or she shall be deemed to have determined that the entitlement of the employee concerned under subsection (1) shall be to a paid day off on the public holiday concerned or, in a case to which the proviso to subsection (1) applies, to an additional day’s pay.

(4) Subsection (1) shall not apply, as respects a particular public holiday, to an employee (not being an employee who is a whole-time employee) unless he or she has worked for the employer concerned at least 40 hours during the period of 5 weeks ending on the day before that public holiday.

(5) Subsection (1) shall not apply, as respects a particular public holiday, to an employee who is, other than on the commencement of this section, absent from work immediately before that public holiday in any of the cases specified in the Third Schedule.

(6) For the avoidance of doubt, the reference in the proviso to subsection (1) to a day on which the employee is entitled to a paid day off includes a reference to any day on which he or she is not required to work, the pay to which he or she is entitled in respect of a week or other period being regarded, for this purpose, as receivable by him or her in respect of the day or days in that period on which he or she is not required to work as well as the day or days in that period on which he or she is required to work.

The Relevant Facts

I note four public holidays fell during the tenure of the Complainant’s employment as follows:

(1)    Christmas Day

(2)    St Stephen’s Day

(3)    New Year’s Day

(4)    St Brigid’s Day 05 February 2024

I note the Complainant was provided with a postal order in the amount of €196.77 in respect of payment for public holidays which was dated 29 February 2024 and of which the Complainant had been advised was ready for collection for her at that time in her former place of work.  I note the Complainant was given the postal order at close of hearing and it was accepted by her.  The matter of public holiday pay is considered further hereunder. 

2.       Salary deducted on February 07 (considered in tandem with No. 1 above)

The Complainant did little to advance or engage with this element of her complaint at hearing.  In her submissions I note she references a deduction of pay on 07/02/2024.  The Complainant exhibits a payslip dated 18/02/2024 with a heading “07/02/2024 Deduction of Pay” accompanied by the following narrative “I don’t understand what the public holiday pay of 43.5 euros displayed on payslip is and how was it calculated?”   

I note the total amount paid to the Complainant for 4 public holidays was €241.25 gross.  This comprises €197.75 gross (net €196.77 amount of postal order) together with €43.50 gross paid to her on 11/02/2024.  I calculate this comprises public holiday pay x 4 at €60.30 per day. 

Therefore, I find this element of the complaint to be not well-founded. 

3.       Working for hours without break time

The Complainant submits she was never paid during break time and her payslip and her work time can prove this.  The Complainant submits when she had a break time the Respondent did not pay her.  The Respondent submits the Complainant was paid to take breaks and that even when the break time is not booked in the calendar per se the Respondent paid for time between clients exactly the same way as for booked breaks and that on average there was 15 minutes of free time between each client.  The Respondent further submits that bookings were made in a way to accommodate breaks between 11am and 2pm for every day the Complainant worked. 

As payment for breaks is not a statutory entitlement I find this element of the complaint pursuant to the Organisation of Working Time Act, 1997 to be not well-founded.   

4.       Unfair layoffs

The Complainant submits that when she questioned the Respondent about her holiday pay, her payslip and her working hours on 26/02/2024 she was added to the blacklist by the Respondent and she received a dismissal email on 28/02/2024.  

The Respondent submits the Complainant did not pass her probationary period.  The Respondent submits the Complainant’s employment was terminated due to performance issues while she was still on probation. 

The Relevant Law

Section 26 of the 1997 Act provides as follows:

26. (1) An employer shall not penalise or threaten penalisation of an employee for—

(a) invoking any right conferred on him or her by this Act,

(b) having in good faith opposed by lawful means an act that is unlawful under this Act,

(c) giving evidence in any proceedings under this Act, or

(d) giving notice of his or her intention to do any of the things referred to in the preceding paragraphs.

(2) Subsection (1) does not apply to the making of a complaint that is a protected disclosure within the meaning of the Protected Disclosures Act 2014.

(3) In proceedings under Part 4 of the Workplace Relations Act 2015 in relation to a complaint of a failure to comply with subsection (1) it shall be presumed until the contrary is proved that the employee concerned has acted reasonably and in good faith in forming the opinion and making the communication concerned.

(4) If a penalisation of an employee, in contravention of subsection (1), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2015, relief may not be granted to the employee in respect of that penalisation both under this Act and under those Acts.

(5) In this section "penalisation" means any act or omission by an employer or a person acting on behalf of an employer that affects an employee to his or her detriment with respect to any term or condition of his or her employment, and, without prejudice to the generality of the foregoing, includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2015), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) imposition or the administering of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation

The Relevant Facts

I note the Respondent has stated the Complainant was dismissed due to performance issues while she was still on probation.  I note the Respondent emailed to inform the Complainant of their regret that they will not be able to continue her employment beyond the probationary period and that after careful evaluation the Respondent has determined that her performance does not meet the standards required for the position. 

For the avoidance of any possible doubt I fully accept the success or failure of an employee’s probation period is a matter for an employer to determine.   While underperformance factors may have influenced the Respondents decision to dismiss the Complainant there is nothing before me to indicate these underperformance issues had been communicated to the Complainant as of being of such significance as to represent a threat to her continued employment. 

There was no evidence advanced by the Respondent either documented or otherwise in relation to any conversations that might have taken place with the Complainant regarding the alleged deficiencies in her performance or of the substance or the outcome of any such conversation. 

In light of the foregoing, the timing of the Complainant raising issues about her holiday pay specifically bank holiday pay and her dismissal by email the following day leads me to conclude, on balance, that her dismissal was linked to her asserting her rights under the Organisation of Working Time Act, 1997.   

Therefore, I find this element of her complaint to be well-founded.  In the circumstances I decide it is just and equitable to require that the Respondent pay the Complainant compensation in the amount of €3,600.00.  

5.       Unclear working hours and no arrangements for up to 18 days

The Complainant submits she would receive notification the night before or on the same day that she needs to be at work and she had 18 days with no work scheduled prior to receiving her dismissal email on 28/02/2024.  I will address the notification of hours hereunder. 

The Relevant Law

Section 17 of the 1997 Act provides as follows:

Provision of information in relation to working time.

17.—(1) If neither the contract of employment of the employee concerned nor any employment regulation order, registered employment agreement or collective agreement that has effect in relation to the employee specifies the normal or regular starting and finishing times of work of an employee, the employee’s employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in each week that he or she proposes to require the employee to work, of the times at which the employee will normally be required to start and finish work on each day, or, as the case may be, the day or days concerned, of that week.

Based on the information and detail ascertained from the various message transcripts between the parties I am satisfied that during certain dates throughout the tenure of her employment with the Respondent the Complainant was not provided 24 hours’ notice of start and finish times in compliance with the legislation set out above. 

The Labour Court held in Musgrave Limited v. Vasilijevs [DWT1825] that a worker is entitled to 24 hours’ notice of their start and finish times to enable them to reconcile their work/life commitments.  I find this complaint of a breach of section 17 of the 1997 Act is well-founded.  In the circumstances I decide it is just and equitable to require the Respondent to pay to the Complainant compensation of €100.00 for a breach of a statutory right. 

Turning now to the Complainant’s complaint of not being rostered for 18 days prior to her dismissal.  I note and I am mindful of the Respondent’s assertion the Complainant was on a zero hours contract. 

I note in respect of zero hours contracts that compensation is payable when an employee is not required by the employer to work, even though the employee was required to make himself/herself available over a period without the guarantee of any work. 

The Relevant Law

The Organisation of Working Time Act, 1997 (“The 1997 Act”) (as amended by the Employment (Miscellaneous Provisions) Act, 2018 provides as follows: 

Provision in relation to zero hours working practices.

18. (1) This section applies to an employee whose contract of employment operates to require the employee to make himself or herself available to work for the employer in a week—

(a) a certain number of hours ("the contract hours"),

(b) as and when the employer requires him or her to do so, or

(c) both a certain number of hours and otherwise as and when the employer requires him or her to do so,

and the requirement is not one that is held to arise by virtue only of the fact, if such be the case, of the employer having engaged the employee to do work of a casual nature for him or her on occasions prior to that week (whether or not the number of those occasions or the circumstances otherwise touching the engagement of the employee are such as to give rise to a reasonable expectation on his or her part that he or she would be required by the employer to do work for the employer in that week).

(2) In a contract for a certain number of hours of work referred to in paragraphs (a) and (c) of subsection (1), the number of hours concerned shall be greater than zero.

(3) Notwithstanding subsection (1), subsection (2) shall not apply to—

(a) work done in emergency circumstances, or

(b) short-term relief work to cover routine absences for that employer.

(4) If an employer does not require an employee to whom this section applies to work for the employer in a week referred to in subsection (1)—

(a) in a case falling within paragraph (a) of that subsection, at least 25 per cent of the contract hours, or

(b) in a case falling within paragraph (b) or (c) of that subsection where work of the type which the employee is required to make himself or herself available to do has been done for the employer in that week, at least 25 per cent of the hours for which such work has been done in that week,

then the employee shall, subject to this section, be entitled—

(i) in a case where the employee has not been required to work for the employer at all in that week, to be paid by the employer the pay he or she would have received if he or she had worked for the employer in that week whichever of the following is less, namely—

(I) the percentage of hours referred to in paragraph (a) or (b), as the case may be,

or

(II) 15 hours,

(ii) in a case where the employee has been required to work for the employer in that week less than the percentage of hours referred to in paragraph (a) or (b), as the case may be (and that percentage of hours is less than 15 hours), to have his or her pay for that week calculated on the basis that he or she worked for the employer in that week the percentage of hours referred to in paragraph (a) or (b), as the case may be,

and the minimum payment shall be calculated as 3 times the national minimum hourly rate of pay within the meaning of the National Minimum Wage Acts 2000 and 2015 or 3 times the minimum hourly rate of remuneration established by an employment regulation order, for the time being in force, on each occasion that this occurs.

(5) Subsection (4) shall not apply—

(a) if the fact that the employee concerned was not required to work in the week in question the percentage of hours referred to in paragraph (a) or (b) of that subsection, as the case may be—

(i)                  constituted a lay-off or a case of the employee being kept on short-time for that week, or

(ii)                (ii) was due to exceptional circumstances or an emergency (including an accident or the imminent risk of an accident), the consequences of which could not have been avoided despite the exercise of all due care, or otherwise to the occurrence of unusual and unforeseeable circumstances beyond the employer’s control, or

(b) if the employee concerned would not have been available, due to illness or for any other reason, to work for the employer in that week the said percentage of hours. 

I note if an employer fails to provide an employee with work that amounts to at least 25% of their ordinarily required working time, the employee will be entitled to the lesser of either 25% of their hours or 15 hours. 

If an employee gets no work, he/she should be paid as if he/she worked 25% of the possible available hours or paid for 15 hours, whichever is less.  In the instant case where the Complainant is required to be available 20 hours per week and she did not get any work, then she is entitled to be paid for either 15 hours or 25% of the 20 hours (5 hours) whichever is less.  In the instant case 5 hours is less.  I note the minimum payment is calculated at three times the national minimum hourly rate (currently €12.70 per hour). 

I note the Complainant states she got no work for 18 days prior to the termination of her employment on 28/02/2024.  I am satisfied the number of hours available to her in this three-week period should have been 20 hours per week bearing in mind the constraints of her student visa. 

On the basis of the above formula, I calculate the Complainant is owed €571.50 [5 hours per week @ €12.70 x three times per hour X 3 weeks].  I find this element of the complaint is well-founded and the Respondent shall pay the Complainant in the amount of €571.50 gross. 

CA-00061875-001

For the reasons stated above I decide the complaint of a contravention of section 19 of the Organisation of Working Time Act, 1997 (entitlement to annual leave) is not well-founded.

For the reasons stated above I decide the complaint of a contravention of section 19 of the Organisation of Working Time Act, 1997 (entitlement in respect of public holidays) is not well-founded. 

For the reasons stated above I decide the complaint of a contravention of section 12 of the Organisation of Working Time Act, 1997 (payment for break times) is not well-founded.

For the reasons stated above I decide the complaint of a contravention of section 26 of the Organisation of Working Time Act, 1997 (penalsation) is well-founded and I order the Respondent to pay the Complainant the sum of €3,600.00 in compensation. 

For the reasons stated above I decide the complaint of a contravention of section 17 of the Organisation of Working Time Act, 1997 (provision of information in relation to working time) is well-founded and I order the Respondent to pay to the Complainant the sum of €100.00 in compensation.

For the reasons stated above I decide the complaint of a contravention of section 18 of the Organisation of Working Time Act, 1997 (provisions in relation to zero working hours practices) is well-founded and I order the Respondent to pay to the Complainant the sum of €571.50 gross. 

CA-00061875-002

For the reasons stated above I decide the complaint of a contravention of the Terms of Employment (Information) Act, 1994 is well founded and I order the Respondent to pay to the Complainant the sum of €1,200.00 in compensation. 

Zero hours contract;