ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00052027
Parties:
| Complainant | Respondent |
Parties | Louise Byrne | Fairkeep LTD |
| Complainant | Respondent |
Anonymised Parties | {text} | {text} |
Representatives |
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Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00063203-001 | 26/04/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00063203-002 | 26/04/2024 |
Date of Adjudication Hearing: 20/08/2024
Workplace Relations Commission Adjudication Officer: Roger McGrath
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 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.
In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021, the Parties were informed in advance that the Hearing would be in Public, that testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for. The required Affirmation / Oath was administered to all witnesses. The legal perils of committing Perjury were explained to all parties. Full cross examination of witnesses was allowed.
The matter was heard by way of a remote hearing held on 20 August 2024, pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the WRC as a body empowered to hold remote hearings.
At the outset of the hearing the respondent pointed out that the correct name of the business entity is Fairkeep Ltd. The respondent was happy to have the name of the respondent corrected.
Background:
The complainant commenced working in the hotel on 22 February 2014. She worked 39 hours per week plus overtime hours. She was paid a gross weekly salary of €672. Her employment ended on 12 April 2024. A complaint was received by the WRC on 26 April 2024 and a hearing of the case took place on 20 August 2024. |
CA- 00063203-001 Complaint under the Payment of Wages Act, 1991.
Summary of Complainant’s Case:
In her complaint from, the complainant stated that when she went on salary in 2019, her contract stated that any hours she worked more than her contracted 39 hours per week would count as time off in lieu hours. She worked a lot of hours over the 39-hour hours per week. Whenever she looked to use the built-up time off in lieu hours, she was told she could not use them, and “they” kept putting it off. When the hotel was sold in September 2023, and her contract transferred to the new owner, she went looking for her lieu time. However, she was given nothing in respect of her accumulated lieu hours. The complainant gave evidence on affirmation at the hearing. The complainant stated that after she went on salary in 2019, she worked 39 hours per week plus extra hours which were recorded as Time Off in Lieu (TOIL) hours. Anytime she looked to use these TOIL hours she was told she could not use them; she was fobbed off. After the hotel was sold to the respondent, she looked for her TOIL hours when she gave in her notice. She was told that there were no records of her TOIL hours. The complainant stated that the hotel went into new ownership in September 2023 and that she left on 10 April 2024. She did get paid overtime when the new owners took over the hotel. The complainant stated that she did get paid overtime from September 2023 to April 2024. A witness for the complainant, Ms Linda Black, who had been Front of House Manager, gave evidence at the hearing on affirmation. She stated that the complainant did not get TOIL, before September 2023. |
Summary of Respondent’s Case:
The respondent provided a written submission. The respondent submits that since the business was bought by Fairkeep Ltd in September 2023, all employees are paid for overtime hours worked on a weekly basis. Overtime is paid on a weekly basis for all salary employees who work over 42 hours. The three hours worked above 39 hours and less than 42 hours is accounted for as TOIL, this is to allow flexibility for staff to take time off. The respondent submits that the complainant was paid for all hours worked over 39 hours since September 2023. She was paid for any balance of TOIL due to her for the period September 2023 to 9 April 2024 (the date she left employment with the respondent) in her final payslip. A Mr Richie McDermott gave evidence on affirmation at the hearing. Mr McDermott stated that when the respondent took over the hotel in September 2023 he did speak with the complainant about the non-payment of TOIL, he thinks in January or February 2024. Once it was explained that staff were not being paid TOIL he decided to change the system, he backdated wages to September to clear the banked hours. |
Findings and Conclusions:
From the evidence adduced, it is clear the complainant was paid overtime from September 2023 until her employment with the respondent ended in April 2024. She made a complaint to the WRC on 26 April 2024. An Adjudication Officer may order the employer to pay arrears due to an employee arising from any unlawful deduction made in the six-months preceding the date on which the complaint was made. This six-month period can be extended to 12 months where reasonable cause is shown for the delay in making the complaint. In this instant case, as no reasonable cause has been shown, the deductions referred to by the complainant fall outside the cognisable period, she was paid fully during the cognisable period. Therefore, the complaint must fail. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
The complaint is not well founded. |
CA- 00063203-002 Complaint under the Organisation of Working Time Act, 1997
Summary of Complainant’s Case:
In her complaint form the complainant submitted that she was not compensated for the loss of her Public Holidays entitlement on leaving. She also requested that she wanted her bank Holidays (sic) checked from 2019. In her direct evidence the complainant stated that she sought a copy of the records pertaining to her Public Holiday entitlements for the last five years, but she was refused access to them. In response to questions put to her in cross examination, the complainant stated that she did get payslips every week, but she was referring to a time before the new owners, the Respondent, took over the hotel. She accepted that her payslips did show Public Holiday pay, however she wanted her Public Holiday entitlement checked for the time before the new owners took over. |
Summary of Respondent’s Case:
Mr McDermott stated in evidence that all public Holiday entitlements were paid to the complainant during the time she was employed by the new owners. Regarding the records that were sought by the complainant, these were the responsibility of the previous owners. |
Findings and Conclusions:
From the evidence adduced I find the complainant was paid her Public Holiday entitlements during the cognisable period. She also received payslips which identified payments for Public Holidays. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
The complaint is not well founded. |
Dated: 24-10-24
Workplace Relations Commission Adjudication Officer: Roger McGrath
Key Words:
Time in Lieu, Public Holiday entitlements |