Complainant

Respondent

Parties

Sinead  O Loughlin

Geraldine Morrissey T/A G Beauty

Representatives

  Self-represented

Lisa Grehan, Accountant

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-00059179-002

02/10/2023

The Complainant commenced her employment with the Respondent on 5 April 2022 as a Beauty Therapist. She resigned her position on 1 July 2023.

On 2 October 2023, the Complainant referred her claim to the Director General of the WRC alleging that on 1 July 2023 the Respondent did not pay her or paid her less than the amount owed to her. The stated monetary value of wages / pay not received was €161. The stated monetary value of holiday pay not received was €174.20.

The Respondent refutes the claims. 

At the adjudication hearing the Respondent exhibited copies of timesheets in support of her position. The Complainant, however, questioned the validity of these documents on the basis that they did not bear her signature. She asserted that the correct record would be the clients’ appointment book. The Adjudication Officer requested the Respondent to furnish copies of the book post-hearing. These were received by the WRC on 27 March 2024 and forwarded to the Complainant for her observations. The Complainant reverted on 2 April 2024 questioning the validity of the documents furnished and stating that the appointment book entries are in pencil and with only copies of the book provided, it cannot be established if anything has been rubbed out.

In her email, the Complainant attached a document which appeared to be an unsolicited supplemental submission. The document was returned to the Complainant and the Adjudication Officer did not take into consideration this submission when deciding this claim.

In the WRC complaint referral form the Complainant submitted that her working week was Tuesday to Saturday. She submitted that she had never received any public holiday pay from the start of her employment and she is owed in total a payment for 13 public holidays.

The Complainant further submitted that when her employer became ill and unable to work, she worked extra hours believing that, when her employer returned to work, she would be paid as per the appointment book showing that she had worked extra hours.

On 9 October 2023, the WRC received correspondence from the Complainant stating that the correct figure outstanding in relation to the public holidays should be €1,226.34 gross.

At the adjudication hearing, the Complainant said that she never worked on a public holiday but never received any pay or an additional day’s leave for that.

While the Complainant initially accepted that the Respondent’s record of holidays paid to her appeared to be correct, she then noted that one of the days she was paid for was a Monday, which she normally did not work. She did not dispute, however that she was paid for 13 days of annual leave.

She further said that over the period of seven weeks when the Respondent was out sick, she would have worked 12 extra hours which she had not been paid for. The Complainant said that her hours of work were not recorded and she questioned the validity of the copies of timesheets furnished by the Respondent. She asserted that, as the timesheets are not signed by her, they should not be taken into account. However, she said that the correct working times would be recorded in the clients’ appointment book.

The Complainant confirmed that she was contacted by the WRC Inspector in April 2023 when WRC Inspectorate conducted an inspection of the Respondent’s records. She confirmed that she did not raise any concerns at the time regarding the record keeping or her public holiday entitlements.

In the written submission, the Respondent emphasised that throughout the Complainant’s employment, the Respondent consistently upheld fair employment practices. Despite the Complainant’s absence due to illness on a number of occasions, the Respondent ensured that she received payment for sick days without the requirement of a sick certificate, reflecting the Respondent’s commitment to her well-being. The Respondent never received a sick certificate from the Complainant during her time off and can only conclude that the one presented to the WRC was obtained from her doctor after she left employment.

The Respondent further submitted that in April of 2023, Ms Morrisey, the Respondent discovered instances where the salon was closed early on a Tuesday which was Ms Morrisey’s day off, without prior notice, affecting business operations. Subsequently, the Respondent confronted the Complainant about these occurrences, seeking resolution for the sake of the salon's stability.

In May 2023, Ms Morrisey unfortunately suffered a stroke, rendering her unable to work. During this challenging period, the Complainant admirably managed the salon for the first 7 weeks, and the Respondent maintained her regular salary to support her dedication.

Regrettably, on two occasions during the period of time the Respondent was off work, the Complainant’s mother telephoned on her behalf, reporting sudden illness. The first occasion forced the Respondent to close the salon and inconvenience clients. This telephone call was made at 11pm the night before. In the second instance, the telephone call was made at 7am in the morning of the day the Complainant was due to report for work. The salon was fully booked with clients attending a local wedding so Ms Morrisey had to defy medical advice and attend work to prevent further disruptions to the business and letting people down. The medical advice was to remain off work for 4 months, but she was forced to return to work after 7 weeks for the sake of the business which was being adversely affected in her absence.

Upon her return to work, a client informed Ms Morrisey that the Complainant had been discussing the business, specifically about not being paid for overtime and the income of the business. Additionally, her mother has reportedly been discussing this matter in the local pub. This breach of confidentiality raised concerns about the impact on the salon's reputation and the potential for misinformation to circulate within the community. When the Respondent confronted the Complainant about this over the phone, initially she denied engaging in conversations about business matters with clients. However, subsequent to this denial, it came to light that she admitted to these discussions after being informed of a reliable source. Regrettably, during the phone conversation, the Complainant’s mother intervened and directed verbal abuse towards Ms Morrisey. Discussions regarding confidential business information with clients clearly breaches the terms of the employment contract which was signed by the Complainant.

On 1 July 2023, while on paid sick leave, the Complainant notified the Respondent that she wouldn't be returning. This situation arose without prior discussion or agreement, causing disruption to the salon's operations.

The Respondent submitted that it is essential to consider this occurrence as part of the overall context to provide a complete understanding of the events that transpired during the Complainant’s employment.

Regarding the allegations of non-payment for overtime and public holidays, the Respondent submits that there are detailed records and evidence to show that the Complainant received an overpayment for holidays, sick days, 3 days of compassionate leave when her aunt died, as well as payment for hours when she closed the salon early without permission.

Additionally, it has come to the Respondent’s attention that the Complainant was inadvertently paid her hourly rate as net instead of gross. Unfortunately, the Complainant did not point out this mistake but once discovered, the Respondent continued to ensure that she received the higher rate of pay. This encompassed any potential compensation for public holidays not paid directly to her.

Following an inspection of the Respondent’s employment records carried out by the WRC Inspectorate in February 2024, the Respondent made an offer to pay the Complainant for five public holidays within the specified time frame. Initially, the Complainant accepted this offer but within two hours, she refused it.

The Respondent submitted that the entire episode has caused her undue stress, especially considering her vulnerable state during her recovery from stroke. The Respondent provided medical records to show the health difficulties she suffered from.

At the adjudication hearing, the Respondent, Ms Morrisey gave evidence that she did not know that she was to pay for public holidays as they fell as the Complainant never worked on a public holiday.

The Respondent said that the Complainant was a great worker and she was very disappointed that her employment ended in this manner. She said that the Complainant left with no notice at a time that was very difficult for the Respondent.

The Respondent said that the Complainant wrote to her on 1 August 2021 regarding the overtime and public holidays. The Respondent checked the records and replied on 17 August 2023 stating that her records show that the Complainant was paid all her entitlements and, in fact, she was overpaid.

The Respondent submitted that the overtime the Complainant had worked in the period from 23 May to 23 June 2023 amounted to 7 hours in total. However, there were 7 instances in 2023 when the Complainant closed the salon one hour earlier than normal without the Respondent’s consent. She was paid for these hours which she did not work.

The Respondent further submitted that the Complainant was paid for 3 additional days holidays during the period from January to June 2023 when she was entitled to 10 days.

This is a complaint pursuant to the Payment of Wages Act, 1991. The Complainant seeks the payment in respect of 13 public holidays from the commencement of her employment and in respect of 12 hours overtime she worked during the illness of her employer, the Respondent.

At the adjudication hearing, the parties raised a number of matters and events that had occurred between them. I informed the parties that these are not within my remit and I would not address them in my decision.

Section 5 of the Payment of Wages Act provides as follows:-

5. Regulation of certain deductions made and payments received by employers

(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.

In Marek Balans v Tesco Ireland Limited [2020] IEHC 55 MacGrath J considered Section 5 of the Act as follows:

36. The provisions of s. 5(6) of the Act of 1991 were considered by Finnegan P. in Dunnes Stores (Cornelscourt) Limited v. Lacey [2007] 1 I.R. 478. A Rights Commissioner had found in favour of the respondents holding that the cessation of service pay amounted to an unlawful deduction, which was upheld by the EAT. It was argued that the EAT should address the question of remuneration properly payable to an employee before considering the question of a deduction or whether a deduction was unlawful. Finnegan P. concluded at p. 482:-

“I am satisfied upon careful perusal of the documents relied upon by the respondents that the same cannot represent the agreement or an acknowledgement of the agreement contended for but rather contain a clear denial of the existence of any such agreement. No other evidence of an agreement was proffered. In these circumstances I am satisfied that the Employment Appeals Tribunal erred in law in failing to address the question of the remuneration properly payable to the respondents, such a determination being essential to the making by it of a determination. Insofar as a finding is implicit in the determination of the Employment Appeals Tribunal that the appellant agreed to pay to the respondents service pay and a long service increment, then such finding was made without evidence and indeed in the face of the evidence: I am satisfied that there has been no deduction of pay from the respondents within the terms of the Act of 1991 but rather their remuneration has been unilaterally increased by the appellant making a payment which recognises their long service in excess of that which was payable prior to the 18th September, 2002. In either case there has been an error or law. Accordingly I allow the appeal.”

The High Court made it clear that, when considering a complaint under the Act, an Adjudication Officer must first establish the wages which were properly payable to the employee before considering whether a deduction had been made. If it is established that a deduction within the meaning of the Act had been made, the Adjudication Officer would then consider whether that deduction was lawful.

It is for the Complainant to make out that the wages payable to her during the period encompassed by the claim are properly payable to her under the Act.

The Labour Court in Hannigans Butchers Limited v Jerko Anders Hresik Bernak DWT 194 held as follows;-

“This Court in Melbury Developments Ltd v. Arturs Valpeters EDA0917, in a case under the Employment Equality Acts, put it clearly in stating, ‘Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn’ and that ‘The Complainant must first establish facts from which discrimination may be inferred’. While these observations of the Court reference specific requirements under the relevant legislation, the sentiments are equally applicable to the exercise of rights under other Acts covering employment law. Indeed, it is a well-established general rule of evidence to quote Palles CB in Mahony v. Waterford, Limerick and Western Railway Co., (1900)2 IR 273,that ‘…it is a general rule of law that it lies upon the plaintiff to prove affirmatively all the facts entitling him to relief…’

In the present case, the Complainant alleges that she was owed a payment for 13 public holidays for the duration of her employment and a payment for 12 hours of overtime.

Section 41 of the Workplace Relations Act stipulates in relevant parts as follows:

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

The implications of the above provisions were clarified to the parties at the adjudication hearing. There was nothing put forward suggesting that the Complainant sought an extension of the time limit or indeed that there was reasonable cause for her submitting her claim when she did. Rather, the Complainant appeared to have suggested that, to her knowledge, the time frame should be longer.

The within complaint was referred to the Director General of the WRC on 2 October 2023. Having regard to the time limits for referral of a complaint of a contravention of section 5 of the Act, as set out in section 41 of the Workplace Relations Act 2015, the cognisable period in respect of this complaint is the period from 3 April 2023 to 2 October 2023. The Complainant’s employment terminated on 1 July 2023.

With regards to the public holiday entitlements, it appears that the Complainant was in touch with the WRC Inspectorate in April 2023 and she did not raise any concerns. On the second occasion, the matter of public holidays arose and the Respondent wrote to the WRC Inspector by letter dated 16 February 2024 indicating that she would make a payment to the Complainant for the period specified by the Inspector. The Respondent issued a payslip and attempted to make a payment to the Complainant which she declined.

There were three public holidays in the cognisable period, namely Easter Monday, the May public holiday and the June public holiday.

While this claim has been referred under the Payment of Wages Act, it is necessary to consider the public holiday entitlements in the context of the Organisation of Working Time Act, 1997.

Section 21. Entitlement in respect of public holidays provides as follows:

(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.

The Respondent acknowledged that the Complainant did not receive a paid day off on the day a public holiday fell on. However, the Respondent gave evidence, which was not disputed by the Complainant, that the Complainant was paid three days of annual leave in excess of her accrued entitlement.

I note that the Complainant’s contract does not specify that the Complainant would receive a paid day off on the day a public holiday falls on. I, therefore, accept that the Respondent’s contention that the Complainant received her entitlements for three public holidays in the form of “an additional day of annual leave” which is in compliance with the provisions of the Act, as quoted above.

With regards to the overtime, as outlined above, in a Payment of Wages Act claim, it falls on the employee to show in the first place that wages were properly payable to them and second, that it was unpaid. In this case, this means whether the Complainant worked 12 hours of overtime as alleged.

The Complainant did not offer any specifics in relation to her assertion. She simply stated that she was owed 12 hours overtime for the period from 10 May and 27 June 2023. I note that the Complainant’s correspondence dated 1 August 2023 to the Respondent suggests that she worked overtime between 10 May and 27 June 2023 when the Respondent was out sick. This correspondence does not provide any specifics either. It suggests that the Respondent checks the appointment book to see on which days the Complainant started before 10am and finished after 6pm.

The Respondent replied in writing on 17 August 2023 noting that the overtime in the period from 23 May to 23 June 2023 amounted to 7 hours in total. However, as on seven occasions the Complainant closed the business one hour earlier than normal without the Respondent’s consent and was paid for that time, the Complainant was not owed any money. The Respondent provided the Complainant with the schedule of the overtime and the earlier closures.

At the adjudication hearing, the Respondent provided a schedule of the overtime worked by the Complainant and the detail of the earlier closures. The Respondent and her accountant confirmed that the clients’ appointment book entries were cross-checked with CCTV to ensure that the schedule was accurate. The Respondent also exhibited a copy of the text message sent to the Complainant on 11 April 2023 inquiring about her closing the salon an hour earlier and instructing her not to do it again as she was paid until 6pm. I note that the clients’ appointment book for 11 April 2024 and the timesheet exhibited by the Respondent corroborate the information from the text message and the schedule of earlier closures.

While the onus is on the Respondent to keep records as prescribed by the Organisation of Working Time Act, I note that the Complainant did not express any concerns in relation to the record keeping at the time of her conversation with the WRC Inspector in April 2023. At the adjudication hearing the Complainant questioned the validity of the timesheet exhibited by the Respondent, albeit she did not point out any inaccuracies.  The Complainant suggested that the appointment book would reflect the accurate hours she had worked. Having been furnished with the copies of the appointment book, the Complainant questioned validity of same but, again, did not point out any inaccuracies.

Under the Payment of Wages Act 1991, an employee is entitled to be paid, in accordance with their contract, for any hours worked. However, as stated above, in a claim pursuant to the Payment of Wages Act, the Complainant must first show that the monies sought by her were ‘properly payable’ to her.

The Complainant has not supplied anything tangible such as a schedule of when the additional hours were worked, i.e. dates and number of hours worked to allow me to conclude, on the balance of probabilities that the Complainant worked the hours claimed. This would be necessary to establish whether overtime pay was properly payable. In accordance with fair procedures, the Respondent would then have the opportunity to submit any contradictory evidence.

On the other hand, the Respondent supplied a detailed record in the form of timesheets, clients’ appointment book, a schedule of hours worked above the normal weekly hours and those not worked but paid for, and copies of payslips.

Having considered the sworn evidence of the Complainant and the Respondent, and the documentary evidence produced by the Respondent, I cannot find that any amount of overtime claimed was properly payable to the Complainant in the cognisable period.

I declare this complaint to be not well founded.

Public holidays- annual leave