ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00049927
Parties:
| Complainant | Respondent |
Parties | Dejana Gagula | Les Byrne T/A El Vino |
Representatives | Self-represented | No appearance |
Complaint:
Act | Complaint 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-00061271-001 | 29/01/2024 |
Date of Adjudication Hearing: 29/04/2024
Workplace Relations Commission Adjudication Officer: Lefre de Burgh
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint. All evidence was given under oath or affirmation and was subject to cross-examination.
Background:
The Complainant worked for the Respondent as a restaurant manager from2/3/2020 until the restaurant closed on 27/08/2023. She gave evidence that she initially worked full-time (forty hours per week) for the Respondent, but subsequent to returning to work after maternity leave, she reduced her hours to part-time (20 hours per week). She also regularly did over-time. This continued until the business closed down, thirteen (13) months later. The Complainant described the events as a shock and explained that there was a lack of notice, consultation and communication. The Complainant exhibited pay-slips as part of her complaint. |
Summary of Complainant’s Case:
The Complainant gave evidence that she was owed 12 hours of outstanding pay, in respect of the most recent public holidays, prior to the business shutting down (€168). She clarified the basis upon which she had made her complaint. Payslips were exhibited. The Complainant outlined that she had gone through an excel file in relation to remuneration received. She outlined the circumstances in which the business closed, and the difficulties caused by a lack of communication and responsiveness surrounding that. The complaint was filed on 29/01/2024, which means the cognisable period runs from 30/07/2023 (‘within six months’). The potential maximum extended cognisable period runs from 30/1/2023. The Complainant’s employment ended on 27/08/2023. |
Summary of Respondent’s Case:
The Respondent did not appear at the hearing and was not represented at the hearing. |
Findings and Conclusions:
I find that this complaint is well founded. The Complainant gave evidence that she was owed the equivalent of 12 hours’ outstanding pay in respect of public holidays. In that regard, she clarified that she had examined her payslips and an excel file setting out what she had received in terms of remuneration. Payslips were exhibited as part of her complaint. The Complainant outlined the circumstances in which the Respondent business shut down, and the lack of responsiveness and lack of communication which followed, and her shock at the circumstances. The Complainant indicated in her evidence that she was seeking an extension of the timeframe re: cognisable period, under the Act. s. 41(6) of the Workplace Relations Act, sets out: “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.” s. 41(8) of the Workplace Relations Act sets out: “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.” I find that there is reasonable cause to extend the time limit, in respect of CA-00061271-001, in the totality of the circumstances, as outlined by the Complainant, in her evidence in this case, in line with the test as set out in Cementation Skanska v Carroll, DWT 0338, and the provisions of s. 41(8) of the Workplace Relations Act. 2015. The Complainant was self-represented and is not from Ireland.
The list of ten public holidays set out in the Organisation of Working Time Act 1997 is as follows: - New Year’s Day (1st January) - The first Monday in February, or 1st February if the date falls on a Friday. - St. Patrick’s Day (17th March) - Easter Monday - The first Monday in May - The first Monday in June - The first Monday in August - The last Monday in October - Christmas Day (25th December) - St. Stephen’s Day (26th December) Under s. 21 of the Organisation of Working Time Act 1997, employers have the discretion to decide which of the four options set out in the legislation to grant to an employee, in respect of a public holiday. Employees may receive any one of the following, in line with the legislation: - A paid day off on the public holiday - A paid day off within the month of the day of the public holiday - An additional day of annual leave - An additional day’s pay |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I find that this complaint is well founded. I award the Complainant €168 for the outstanding pay owed in respect of public holidays, and a further €200 in compensation for the breach of her employment rights. I direct the Respondent to pay the Complainant €368 within 42 days of the date of this decision. |
Dated: 27th June 2024.
Workplace Relations Commission Adjudication Officer: Lefre de Burgh
Key Words:
Organisation of Working Time Act 1997 |