Complainant

Respondent

Parties

Saoirse  Lynch

Gaelachas Teoranta

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00066232-001

24/09/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00066232-003

24/09/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00066232-004

24/09/2024

The Complainant was an employee with the Respondent from 22 October 2023 until the termination of her employment on 21 June 2024.  She alleged that she was paid less than the minimum wage, that she did not receive her paid holiday/annual leave entitlement and that she did not receive her public holiday entitlement. 

The Respondent provided boarding services for students of an Irish speaking primary and secondary school.  It is a Friendly Society run by a Board of Governors.  It was the Respondent’s position that it did not have adequate records to address the complaints.

The Complainant submitted that the Friendly Society of The Respondentwas set up in 1944 providing boarding services for students of Coláiste An Phiarsaigh (Secondary) and Scoil Na nÓg (primary 5th, 6th 7th classes) Irish medium schools.  She submitted that this was a Friendly Society run by a Board of Governors and she confirmed that Mr O’Catháin had been the Acting Chair for quite some time.  She confirmed that Mr O’Catháin was a qualified Solicitor and she stated that the Board appoints/instructs professional service individuals and companies to act on its behalf. 

The Complainant submitted that Ms A was in the position of Secretary to the Board since 1973.  She submitted that she understood that Ms A had been an employee prior to that since around the time of its setup in 1958.  The Complainant outlined Ms A’s role as dealing with staff and administrative issues on behalf of the Board.  She stated by 2024 Ms A had been in post for many years (circa 60 years) and that her preferred form of communication was oral.  The Complainant stated that she seldom responded to emails and needed reminding and assistance, yet she always had the best interests of students at heart.  The Complainant confirmed that Ms A reported to the Board and for the Respondent to now suggest that Ms A acted without instruction, or without the knowledge of the Board of Trustees was refuted.  She submitted that from February 2024, Ms A was assisted by Mr B, who reported to the Board of Trustees.

The Complainant submitted that up until 2022 the role of Feitheoir (supervisor) was undertaken by trainee teachers on placement from third level institutions and that this arrangement ceased in Summer 2022.  She submitted that in August 2022 past pupils of Coláiste An Phiarsaigh were asked to undertake these duties. 

The Complainant submitted that from the outset of her employment she consistently requested to be paid in line with legislative requirements, requested the required and appropriate staffing so that the supervisors could take appropriate breaks and provide appropriate supervision to the children in their care.  She submitted that she did not receive pay slips or a contract of employment.  She further stated that in hindsight she now knows that she should have put all of these requests in writing, but that in the context that Ms A’s preferred communication was oral, that was how matters were dealt with.

The Complainant stated that there were ongoing issues with pay, cover and terms and conditions, and the general running of boarding house services for all supervisors.  She submitted that in February 2024, the Head Supervisor, Mr O’Ceallaigh, met with Mr. B (representing the Board of The Respondent) to discuss the ongoing issues with the running of the boarding house.  She stated that there was a specific heading for pay to supervisors in the letter which stated that they were not paid holiday pay despite asking, were not being paid correctly every week, were not receiving payslips and had issues with pay owed to them.  The Complainant provided a copy of the correspondence relating to that discussion.  She submitted that the letter also stated that the staff did not receive a Contract of Employment despite asking for one and that there was no clear guideline with regard to their duties and that they were left to deal with all issues as they escalated without support or guidance. 

The Complainant stated that staffing issues were also raised at that time but that the supervisors were left to fill in all shifts because there were not enough staff on the roster.  She submitted that she could not take breaks, as children could not be left unattended.  The Complainant stated that the Head Supervisor brought those issues to Mr B’s attention and was under the impression that they were being then presented to the Board of The Respondent to be resolved. 

The Complainant submitted that a decision to suspend boarding services was made but was not communicated to her by The Respondent and that she received this information from students in her care during her shift on 10 April 2024.  The Complainant stated that she wrote to Mr O’Catháin by email on 31 May 2024 and referred to the failure of the Board to notify her as a staff member and she sent a second copy of that letter on 10 June 2024, having received no initial reply.

The Complainant submitted that on learning that the boarding facilities were to cease, and reflecting on how the information had reached her, she finally took a decision to write formally requesting that her pay and Terms and Conditions be corrected.  She stated that she did not take this decision lightly, that it was a last resort, and that she had put a lot of time and effort into checking all of the information and calculations to aid The Respondent in settling matters.  She submitted that this however yielded no results and that as a consequence she wrote on three more occasions requesting an update or an answer.  She stated that finally on 24 September 2024 she submitted her complaints to the Workplace Relations Commission and she informed Mr O’Catháin and The Respondent by email of her intention in that regard.

Boarding House Working Hours:

The Complainant submitted that it was her responsibility to provide the utmost care to a number of children residing in the boarding house.  She submitted that she took her role as supervisor very seriously and cared deeply about the children in her care.  She submitted that she took calls from parents, organised events and did everything in her power to fulfil her role.

She submitted that during non-school hours, children ages 11-18 had to be supervised at all times (15:30pm – 09:15am next day, equal to a total of 17 hours and 15 minutes).  The boarding house was open from 6pm on Sunday evening until 3:30pm on the following Friday afternoon.  Children were never to be left unattended.  Children ranged in age from 11 to 18 years.  She stated this was a system that was set up by The Respondent. 

The Complainant further submitted that from 3:30pm to 8pm there were around 75 children overall (including day boarders) and a total of 3-4 supervisors on duty.  She submitted that from 8pm to 09:15am there would be 23-27 children in the girl’s dormitories, spread across two floors, with primary school children on one floor and secondary school children on another.  She stated that two supervisors were rostered on duty and that children were never to be left unattended.  She submitted that in those circumstances, the supervisors did not receive a break as there were not enough supervisors to cover the ratio of children to supervisors.  She stated that she sent an email to The Respondent (Ms A) requesting a third supervisor to be put on duty to relieve the stress and workload but that despite numerous verbal requests, her request remained unanswered.

The Complainant submitted that she felt a burden of responsibility to the children in her care, especially the primary school children who required a level of emotional support and direction, with social and educational aspects during their time in Scoil Na nÓg.  She stated that nobody was dealing with the issues and despite numerous requests no solution was forthcoming from the Board.

CA-00066232-001: (Minimum Wage)

In her complaint form, the Complainant confirmed that she was worked night shifts that lasted from 8 pm to 9.15 am the following morning and was paid €85 for that shift.  She submitted that her understanding based on advice was that “a sleepover shift is when you are in work for a continuous period of 8 hours or more between 11 pm and 8 am” and that you are entitled to at least the minimum wage if you work a sleepover shift, even if you are allowed to sleep between tasks.  The Complainant stated that she was massively underpaid for every night shift she worked.

The Complainant outlined that during the time she worked for The Respondent, she consistently requested that her compensation be paid in line with minimum wage requirements.  She confirmed that she was 20 years old at the time of employment which meant that she should be paid in line with legislative requirements. She submitted that she brought these complaints to the attention mainly of the Head Supervisor, Mr. O’Ceallaigh and that he, in turn, raised the matters with the Board.

She submitted that in hindsight she now knew that she should have put all of these requests in writing. 

The Complainant submitted that The Respondent had not dealt with the claims in her letter, sent via email on 31 May 2024. 

CA-00066232-003: (Holiday Pay)

The Complainant alleged that she did not receive her paid holiday/annual leave entitlements.  In her Complainant form she outlined that she worked a total of 2785.5 hours in 2023, for which she received no holiday pay.  She further stated that she worked a total of 919.25 hours in 2024 but again received no paid holiday entitlement.

She outlined that she believed, based on advice that she was entitled to receive a paid holiday entitlement based on 8% of the minimum wage for hours worked.

In her submission the Complainant confirmed that she had never received holiday pay.  She

stated that she refuted that the Board was unaware of the requirement to pay holiday pay in line with legislation.  She stated that Ms. A reported to the Board and was aware of the situation.

She submitted that the Board employed auditors and accountants who are obliged to act within the law.   She stated that in his email of 2 February 2024, on behalf of the supervisors, and following a meeting earlier, that Mr O’Ceallaigh had addressed this issue. 

The Complainant calculated the sum owed to her to be 2,130.16

The Complainant made the above submission under the heading of CA-00066201-004 but it was clear from the content that it referred to her claim for her holiday entitlement.  In that context I have recorded it accordingly.

CA0066201-004: (Public Holidays)

The Complainant contended that she had not received her public holiday entitlement in relation to Christmas, Easter or mid-term breaks etc.    The Complainant did not provide any additional specific information within her submission in relation to this complaint

The Respondent submitted that the boarding house was managed by Ms A until May 2024 when the decision was made to suspend boarding services in the schools.  The Respondent submitted that unfortunately Ms A was not in a position to assist the Respondent further in responding to these complaints on account of ill health.

The Respondent submitted that as part of the process after the decision was made to suspend boarding services, the Respondent engaged the services of the Society’s accountants and HR Consultants, and the normal redundancy protocols were followed as appropriate.  The Respondent submitted that employment information was gathered and analysed and those entitled to receive redundancy received same.  The Respondent submitted that the Board was somewhat disappointed to have received these complaints as full consideration was given to all who were involved in the provision of boarding services, however, the Respondent stated that it would set out its position in relation to each of the complaints below.

CA-00066232-001: (Minimum Wage)

The Respondent submitted that the rates of pay were agreed by the Complainant with Ms A and that the Board was not made aware of any issues in relation to pay arrangements (to include Sunday pay for boarding).  The Board of the Respondent submitted it was not aware of the arrangements made directly between the Complainant and Ms A, nor of any complaint made by the Complainant during her employment with the Respondent regarding pay (to include Sunday pay) and conditions.  The Board submitted that it could not find any correspondence regarding the issue.  The Respondent submitted that many of the supervisors were casual workers, who chose their own times and dates for work. 

The Respondent Board stated that it had responded to the Complainant on receipt of the initial complaint and advised that it was looking into the matter.  The Respondent stated that this took some time on account of school closure, holidays and Ms A’s ill health. 

CA-00066232-003: (Holiday Pay)

The Respondent submitted that the rates of pay were agreed by the Complainant with Ms A and that the Board was not made aware of any issues in relation to pay arrangements (to include holiday pay) for boarding.  The Board of the Respondent submitted it was not aware of the arrangements made directly between the Complainant and Ms A, nor of any complaint made by the Complainant during her employment with the Respondent regarding pay (to include Sunday pay) and conditions.  The Board submitted that it could not find any correspondence regarding the issue.  The Respondent submitted that many of the supervisors were casual workers, who chose their own times and dates for work. 

The Respondent Board stated that it had responded to the Complainant on receipt of the initial complaint and advised that it was looking into the matter.  The Respondent stated that this took some time on account of school closure, holidays and Ms A’s ill health. 

CA-00066232-004 (Public Holidays)

The Respondent submitted that the rates of pay were agreed by the Complainant with Ms A and that the Board was not made aware of any issues in relation to pay arrangements (to include Sunday pay for boarding).  The Board of the Respondent submitted it was not aware of the arrangements made directly between the Complainant and Ms A, nor of any complaint made by the Complainant during her employment with the Respondent regarding pay (to include Sunday pay) and conditions.  The Board submitted that it could not find any correspondence regarding the issue.  The Respondent submitted that many of the supervisors were casual workers, who chose their own times and dates for work. 

The Respondent Board stated that it had responded to the Complainant on receipt of the initial complaint and advised that it was looking into the matter.  The Respondent stated that this took some time on account of school closure, holidays and Ms A’s ill health. 

CA-00066232-001: (Minimum Wage)

Section 24 (2) of the Act provides:

“The Director General of the Workplace Relations Commission shall not entertain a dispute in relation to an employee’s entitlements under this Act and, accordingly, shall not refer the dispute to an adjudication officer under section 41 of the Workplace Relations Act 2015

(a) unless the employee—

(i) has obtained under section 23 a statement of his or her average hourly rate of pay in respect of the relevant pay reference period, or

(ii) having requested the statement, has not been provided with it within the time limited by that section for the employer to supply the information, and a period of 6 months (or such longer period, not exceeding 12 months, as the rights commissioner may allow) has not elapsed since that statement was obtained or time elapsed, as the case may be,

or

(b) where, in respect of the same alleged under-payment, the employer is or has been—

(i) the subject of investigation by an inspector under section 33 or 34, or

(ii) prosecuted for an offence under section 35.”

This complaint was received 23 September 2024.  A reading of Section 24(2) above outlines the clear obligations on employees proceeding with a complaint under the Minimum Wage Act. 

The Complainant had not received or sought a statement of her hourly rate when she referred this complaint.  Her correspondence of 4 June does not meet the requirements of the Act. I therefore find I do not have jurisdiction in the matter.

CA-00066232-003: (Holiday Pay)

The Complainant claimed payment for annual leave for the duration of her employment from 22 October 2023 until the termination of her employment.  I noted her position that she had not received any paid annual leave or pay in lieu of annual leave throughout her employment.  I noted also, the Respondent position that it did not have records to confirm it’s position but that the arrangements in place were agreed between the Complainant and Ms. A at the commencement of the employment relationship.

Section 25- (1) of the Organisation of Working Time Act states that “An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this Act and, where applicable, [the activities of Doctors in Training Regulations] are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making.”

Section (3) and (4) further outlined that:

(3) An employer who, without reasonable cause, fails to comply with subsection (1) shall be guilty of an offence

(4) Without prejudice to subsection (3), where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act or the [Activities of Doctors in Training Regulations] in relation to an employee, the onus of proving, in proceedings before a Rights Commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.”

The Respondent has provided no evidence to show how the Complainant’s entitlement to annual leave was addressed throughout her employment.  In that context I find that the Complainant had an entitlement to receive paid annual leave.

Consequently, I must now consider her entitlement and what redress is appropriate in the circumstances.

The entitlement to paid statutory annual leave is set out in section 9-(1) of the Act as follows:

“Subject to the First schedule (which contains transitional provision in respect of the leave yers 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):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.

(1A) For the purposes of this section, a day that an employee was absent from work due to illness shall, if the employee provided to his or her employer a certificate of a registered medical practitioner in respect of that illness, be deemed to be a day on which the employee was—

(a) at his or her place of work or at his or her employer’s disposal, and

(b) carrying on or performing the activities or duties of his or her work.]

(2) A day which would be regarded as a day of annual leave shall, if the employee concerned is ill on that day and furnishes to his or her employer a certificate of a registered medical practitioner in respect of his or her illness, not be regarded, for the purposes of this Act, as a day of annual leave.

(3) The annual leave of an employee who works 8 or more months in a leave year shall, subject to the provisions of any employment regulation order, registered employment agreement, collective agreement or any agreement between the employee and his or her employer, include an unbroken period of 2 weeks.

(4) Notwithstanding subsection (2) or any other provision of this Act but without prejudice to the employee’s entitlements under subsection (1), the reference in subsection (3) to an unbroken period of 2 weeks includes a reference to such a period that includes one or more public holidays or days on which the employee concerned is ill.

(5) An employee shall, for the purposes of subsection (1), be regarded as having worked on a day of annual leave the hours he or she would have worked on that day had it not been a day of annual leave.

(6) References in this section to a working week shall be construed as references to the number of days that the employee concerned usually works in a week

The Complainant commenced employment with the Respondent on 22 October 2023 and worked on average 60 hours per week.  She should therefore have received 18 days paid annual leave in each full year of employment and should have received a prop rata entitlement for each part year worked. 

Time limit

I note that Section 41 (6) of the Workplace Relations Act 2015 provides:

“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.”

However, I further note the CJEU decisionin King v Sash Windows (In Case C‑214/16, REQUEST for a preliminary ruling under Article 267 TFEU, from the Court of Appeal (England & Wales) (Civil Division), made by decision of 30 March 2016, received at the Court on 18 April 2016, in the proceedings Conley King v The Sash Window Workshop Ltd, Richard Dollar, as follows:

“First, according to the Court’s settled case-law, the right to paid annual leave cannot be interpreted restrictively (see judgment of 22 April 2010 Zentralbetriebsrat der Landeskrankenhäuser Tirols, C‑486/08, EU:C:2010:215, paragraph 29). Thus, any derogation from the European Union system for the organisation of working time put in place by Directive 2003/88 must be interpreted in such a way that its scope is limited to what is strictly necessary in order to safeguard the interests which that derogation protects (see, to that effect, judgment of 14 October 2010, Union Syndicale Solidaires Isère, C‑428/09, EU:C:2010:612, paragraph 40 and the case-law cited).

59      In circumstances such as those at issue in the main proceedings, protection of the employer’s interests does not seem strictly necessary and, accordingly, does not seem to justify derogation from a worker’s entitlement to paid annual leave.

60      It must be noted that the assessment of the right of a worker, such as Mr King, to paid annual leave is not connected to a situation in which his employer was faced with periods of his absence which, as with long-term sickness absence, would have led to difficulties in the organisation of work. On the contrary, the employer was able to benefit, until Mr King retired, from the fact that he did not interrupt his professional activity in its service in order to take paid annual leave.

61      Second, even if it were proved, the fact that Sash WW considered, wrongly, that Mr King was not entitled to paid annual leave is irrelevant. Indeed, it is for the employer to seek all information regarding his obligations in that regard.

62      Against that background, as is clear from paragraph 34 of the present judgment, the very existence of the right to paid annual leave cannot be subject to any preconditions whatsoever, that right being conferred directly on the worker by Directive 2003/88. Thus, as regards the case in the main proceedings, it is irrelevant whether or not, over the years, Mr King made requests for paid annual leave (see, to that effect, judgment of 12 June 2014, Bollacke, C‑118/13, EU:C:2014:1755, paragraphs 27 and 28).

63      It follows from the above that, unlike in a situation of accumulation of entitlement to paid annual leave by a worker who was unfit for work due to sickness, an employer that does not allow a worker to exercise his right to paid annual leave must bear the consequences.

64      Third, in such circumstances, in the absence of any national statutory or collective provision establishing a limit to the carry-over of leave in accordance with the requirements of EU law (see, to that effect, judgments of 22 November 2011, KHS, C‑214/10, EU:C:2011:761 and of 3 May 2012, Neidel, C‑337/10, EU:C:2012:263), the European Union system for the organisation of working time put in place by Directive 2003/88 may not be interpreted restrictively. Indeed, if it were to be accepted, in that context, that the worker’s acquired entitlement to paid annual leave could be extinguished, that would amount to validating conduct by which an employer was unjustly enriched to the detriment of the very purpose of that directive, which is that there should be due regard for workers’ health.

65      It follows from all the foregoing considerations that the answer to the second to fifth questions is that Article 7 of Directive 2003/88 must be interpreted as precluding national provisions or practices that prevent a worker from carrying over and, where appropriate, accumulating, until termination of his employment relationship, paid annual leave rights not exercised in respect of several consecutive reference periods because his employer refused to remunerate that leave.

And the employer now estimates the following:

For leave year 2024/25 the balance is now: 13 weeks at 23 hours per week at 8% 23.92 hours accumulated this year. Hours Total outstanding as of June 30th 2024 23.92 + 79.18 103 hours.

The right to accrued leave continues until cessation of employment.”

In light of the above CJEU interpretation of the Directive I must conclude that the Complainant has a right to the accrued annual leave from commencement of employment in August 2022 until the cessation of employment in April 2024 and in these circumstances, she was entitled to receive payment in lieu of the leave at the time of termination of employment.  I calculate her annual leave entitlement to be 12 days equating to a monetary value of €561.75

In all the circumstances I find her complaint to be well founded, and I require the Respondent to pay to the Complainant the sum of €561.75 representing the monetary loss together with the sum of €2,000 compensation for breach of the Act.

CA-00066232-004: (Public Holidays)

The Complainant sought payment for public holidays owed from commencement to the termination of her employment and at the applicable minimum wage rate.

I have dealt with the claim for the minimum wage at CA-0006201-001 above and in circumstances where the Complainant had not complied with the requirements of the Act, I did not have jurisdiction to address her claim in that regard.  Therefore, I am considering this claim based on the rate of pay operating at the time of her employment.

Section 41 (6) of the Workplace Relations Act 2015 provides:

“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.”

Section 21 of the Act provides:

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:

This complaint was received on 24 September 2024.  In accordance with Section 41 of the Act, the cognisable time period is from 24 March 2024.

In that period there were 3 public holidays for which she was entitled to be paid, 18/03/2024, 01/04/2024, 06/05/2024 and 03/06/2024. 

In all the circumstances I find her complaint to be well founded.

CA-00066232-001: (Minimum Wage)

I found that the Complainant had not received or sought a statement of her hourly rate when she referred this complaint and I therefore do not have jurisdiction in the matter. In these circumstances it is my decision that this complaint is not well founded.

CA-00066232-003: (Holiday Pay)

I found that this complaint is well founded, and I decide accordingly.   I direct the Respondent to pay to the Complainant the sum of €561.75 representing the monetary loss together with the sum of €2,000 compensation for breach of the Act.

CA-00066232-004: (Public Holidays)

I found this complaint to be well founded, and I decide accordingly.  I direct the Respondent to pay to the Complainant the sum of €360 representing the monetary loss associated with her public holiday entitlement within the cognisable period of this complaint together with the sum of €2,000 compensation for breaches of the Act.

Minimum wage, holiday pay, public holidays