ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00053107
Parties:
| Complainant | Respondent |
Parties | Agata Chrustek | Green Aesthetics Medical Limited |
Representatives | Self-represented | Did not attend the hearing and was not represented |
Complaints:
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-00064950-001 | 23/07/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00064950-002 | 23/07/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00064950-003 Duplicate of CA-00064950-008 | 23/07/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 15 of the European Communities (Organisation of Working Time) (Mobile Staff in Civil Aviation) Regulations 2006 - S.I. No. 507 of 2006 | CA-00064950-004 Complaint submitted in error
| 23/07/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00064950-005 | 23/07/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00064950-006 | 23/07/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00064950-008 | 23/07/2024 |
Date of Adjudication Hearing: 16/12/2024
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Procedure:
In accordance with Section 41 of the Workplace Relations Act 2015, these complaints were assigned to me by the Director General. I conducted a hearing on December 16th 2024, at which I made enquiries and gave the parties an opportunity to be heard and to present evidence relevant to the complaints. The complainant, Ms Agata Chrustek, represented herself at the hearing. She was accompanied by her sister, Kasia Chrustek.
No one attended the hearing to represent Ms Chrustek’s former employer, Green Aesthetics Medical Limited. Having been notified of this complaint on July 26th 2024, on August 8th, the accountant for the company wrote to the WRC and confirmed that they were happy to receive documents by email. The accountant provided a short submission on September 9th. On October 30th, a notice of the hearing date of December 16th was sent to the accountant by email. I am satisfied therefore, that the respondent was properly on notice of the hearing and that no explanation has been provided to explain their absence. In the absence of anyone representing Green Aesthetics Medical Limited, I have reached the conclusions set out below based solely on the evidence of Agata Chrustek
While the parties are named in this Decision, for convenience, I will refer to Ms Chrustek as “the complainant” and to Green Aesthetics Medical Limited as “the respondent.”
Complaint number CA-00064950-003 under the Payment of Wages Act 1991 concerns a claim for pay in lieu of notice at the termination of employment and is a duplicate of complaint CA-00064950-008 which was submitted under the Minimum Notice and Terms of Employment Act 1973. At the hearing, the complainant agreed that complaint number CA-00064950-004 under Regulation 15 of the European Communities (Organisation of Working Time) (Mobile Staff in Civil Aviation) Regulations 2006 was submitted in error.
Summary of the Complaints:
The complainant started working for the respondent on March 25th 2024. She was employed as a beautician / receptionist in their beauty salon in St Stephens Green Shopping Centre in Dublin. Payslips that she provided in evidence at the hearing show that she was paid €15.50 per hour. On the form she submitted to the WRC, she said that for three of the 11 weeks that she worked with the respondent, her wages were late being transferred to her bank account and she got paid on Monday instead of the previous Friday. The complainant was dismissed on June 11th 2024, when she complained that her wages had not been transferred to her bank account on time. In a text message on that day, a manager wrote to her and said, “I think we have to finish the working relationship in case more arguments in future (sic).” This was confirmed in an email from an administrator later that day, who wrote: “I am here to inform that your Employment Contract will be terminated by today on 11 June 2023 in probation period. We will pay you extra 3 days wage plus holiday pay in this week’s payslip (sic).” CA-00064950-001: Complaint under the Organisation of Working Time Act 1997 This is a complaint that the respondent did not comply with s.14 of the Organisation of Working Time Act 1997 (“the OWT Act”) by failing to pay a Sunday allowance for working on Sundays. The complainant was employed by the respondent for 11 weeks, from March 25th until June 11th 2024. At the hearing, she said that she worked around every second Sunday, although her contract provided that she would be required to work from Monday to Saturday. She said that she agreed to work on Sundays to help out, but she was never paid a Sunday allowance. CA-00064950-002: Complaint under the Payment of Wages Act 1991 In her evidence at the hearing, the complainant said that, although she was paid for all the hours that she worked, her wages were regularly transferred to her bank on the Monday after the Friday on which she was due to be paid. CA-00064950-005: Complaint under the Organisation of Working Time Act 1997 The complainant said that she worked on the public holidays on Easter Monday, April 6th 2024 and on May 6th and June 3rd. She said that, in contravention of s.21 of the OWT Act, she did not receive the benefit of the public holiday in the form of an extra day’s pay or an extra day’s holidays. CA-00064950-006: Complaint under the Organisation of Working Time Act 1997 The complainant claims that, in contravention of s.20 of the OWT Act, she did not receive pay for the holidays that accrued during her employment from March 25th until June 11th 2024. CA-00064950-008: Complaint under the Minimum Notice & Terms of Employment Act 1973 The complainant was dismissed without notice and she was not paid in lieu of notice. |
Findings and Conclusions:
CA-00064950-001: Complaint under the Organisation of Working Time Act 1997 The payslips that the complainant submitted in evidence show that she was paid €15.50 for all the hours that she worked and there is no evidence of any additional pay for working on Sundays. She said that she worked every second Sunday and that the shop was open from 10.00am until 6.00pm, which means that she was required to work for seven hours on Sundays. I find that the complainant is entitled to compensation for working on six Sundays for seven hours on each day, a total of 42 hours. Based on the general terms and conditions for working on Sundays in the retail sector, I consider that a reasonable allowance for Sunday working is time and a half. I have decided therefore, to award the complainant compensation of €325.50, which is based on 50% of her hourly rate of €15.50 for 42 hours. CA-00064950-002: Complaint under the Payment of Wages Act 1991 The complainant said that, for a number of weeks, her wages were transferred to her bank account the Monday after she was due to be paid on the previous Friday. The complainant’s evidence was corroborated by text messages that she presented at the hearing between her and a manager in the business. The complainant also said that she was paid for all the hours that she worked. I am satisfied therefore that, because she received all the wages that were properly payable to her, while she may have been paid late, there has been no breach of s.5(6) of the Payment of Wages Act. CA-00064950-005: Complaint under the Organisation of Working Time Act 1997 In a submission to the WRC on September 6th 2024, the accountant for the respondent said, “There were two public holidays during the employment (06/05/2024 & 03/06/2024), bank holidays pays (sic) are processed in wk20 and wk24 payroll, which is calculated at 1/5 of the prior week working hours.” In week 20, the complainant worked for 40 hours. As one fifth of 40 hours is eight hours, she should have been paid €124.00 extra for working on May 6th, but she was paid €94.55, a shortfall of €29.45. In week 24, the complainant worked for 16 hours. For the public holiday on June 3rd, she was paid €113.68. If she worked on the June 3rd, she should have been paid an extra day’s pay, which is €124.00. Although the complainant had no access to her roster, because her payslip indicates that she was paid for working on the public holiday, I assume that she worked on the public holiday and that the correct amount of wages for working for eight hours is €124.00. I am satisfied that, because she was paid €113.68 for working on the June 3rd public holiday, there is a shortfall of €10.32. The complainant commenced employment on March 25th and Easter Monday fell on April 1st. I understand from the evidence submitted by the complainant that she was paid in cash for the first two weeks of her employment and there is no evidence that the received a benefit for working on Easter Monday. I find therefore that, for working on Easter Monday on April 1st 2024, the complainant is entitled to compensation of €124, equivalent to one fifth of a week’s pay for a 40-hour week. CA-00064950-006: Complaint under the Organisation of Working Time Act 1997 Having commenced working on March 25th 2024, by June 7th, the complainant had accrued four days’ holidays ((20 days’ statutory holidays / 52 weeks) x 11 weeks’ service). In her evidence at the hearing, the complainant said that she went on holidays on Friday, June 7th 2024. On June 14th, she was due to be paid her wages for the week ending on June 7th. She was paid for working 16 hours that week, including on the public holiday that fell on June 3rd. I am satisfied that, in her wages on June 14th the complainant was not paid holiday pay for Friday, June 7th. The complainant said that she was also rostered for holidays on Monday and Tuesday, June 10th and 11th. She was dismissed on Tuesday, June 11th. In the text message confirming her dismissal, the manager wrote, “I will still pay you three extra days’ wages and holiday pay since starting. Normally, we do not need to pay these days’ wages during your probation, but you deserve to have it.” It appears from this that, in breach of s.20 of the OWT Act, the manager thought that the complainant wasn’t entitled to holiday pay while she was on probation. Her payslip dated June 21st is a record of her wages for the week ending on June 14th, a week in which she was on holidays for two days and did not work on any other day. This payslip shows that she was paid for working for 24 hours (three days) and that she received holiday pay of €414.94, equivalent to pay for 26.75 hours based on her hourly rate of €15.50. As she was paid for working 50.75 hours in the week that she was on holidays for two days, I am satisfied that the complainant was paid for her holidays on June 7th, 11th and 14th and for one day’s holidays that she had not taken by the date she was dismissed. CA-00064950-008: Complaint under the Minimum Notice & Terms of Employment Act 1973 Section 4(1) of the Minimum Notice and Terms of Employment Act 1973 provides that an employee with less than 13 weeks of service is not entitled notice of the termination of their employment: (1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section. As the complainant was employed by the respondent for 11 weeks, I find that she is not entitled to notice. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00064950-001: Complaint under the Organisation of Working Time Act 1997 I decide that this complaint is well founded and I direct the respondent to pay the complainant compensation of €325.50, equivalent to half of her hourly rate of €15.50 for 42 hours. CA-00064950-002: Complaint under the Payment of Wages Act 1991 As I have found that the complainant was paid her wages for all the hours she worked when she was employed by the respondent, I decide that this complaint is not well founded. CA-00064950-005: Complaint under the Organisation of Working Time Act 1997 I decide that this complaint is well founded and I direct the respondent to pay the complainant compensation of €163.77, in relation to the shortfall in pay for working on the public holidays that fell on April 1st, May 6th and June 3rd 2024. CA-00064950-006: Complaint under the Organisation of Working Time Act 1997 I am satisfied that the complainant was paid for all the annual leave days to which she was entitled and I decide that this complaint is not well founded. CA-00064950-008: Complaint under the Minimum Notice & Terms of Employment Act 1973 As the complainant was employed by the respondent for less than 13 weeks, I decide that this complaint is not well founded. |
Summary of Awards:
For the convenience of the parties, I have summarised below the awards made under each complaint heading.
CA-00064950-001. Breach of s. 14 of the Organisation of Working Time Act 1997: €325.50 CA-00064950-002. Breach of s.5 of the Payment of Wages Act 1991: Not well founded CA-00064950-003. Duplicate of complaint CA CA-00064950-008: Not well founded CA-00064950-004. Complaint was submitted in error: Not well founded CA-00064950-005. Breach of s.21 of the Organisation of Working Time Act 1997: €163.77 CA-00064950-006. Breach of s.20 of the Organisation of Working Time Act 1997: Not well founded CA-00064950-008. Breach of s.4 of the Minimum Notice & Terms of Employment Act 1973: Not well founded. Total award: €489.27 This total award is not subject to any deductions for PAYE, PRSI or USC. |
Dated: 06-01-25
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Key Words:
Payment of wages, holidays, public holidays, minimum notice |