Complainant

Respondent

Parties

Nataliia  Davletshyna

Kilronan House Hotel

Representatives

  Self-Represented

 Leon Kinsella

Act

Complaint/Dispute 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-00066910-001

23/10/2024

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and a witness for the respondent undertook to give their evidence under affirmation.  Cross examination was facilitated.

The hearing took place with the assistance of an interpreter provided by the WRC.

The complainant submitted that she was placed on annual leave from 13 October 2024 by the Acting Manager. She stated that she never expressed a desire for holidays. She stated that she sent a message to the manager asking, “was she fired?” and she didn't receive her reply for five days after. The complainant stated that in five days she received a response from the manager stating that she was back on the roster from the following week.

The complainant confirmed that she was paid for her days off but stated that by the time the Manager came back to her to say that she was going on the roster, she had already booked a flight to the Ukraine and stated that she said she no longer wanted to work with those people.

The complainant later clarified that the Acting Manager did not explain anything to her. She stated that when she asked her colleague what the what reason for her being taken off the roster was, her colleague translated that the Acting Manager had said “because that's the way it is”.

Cross examination was not availed of.

The respondent submitted that while the Manager was on leave there was an Acting Manager in place who had no authority to fire anybody.  It was submitted that the roster for the week 14 - 20 October 2024 did not include the complainant. The witness for the respondent stated that matters had been explained to the complainant but confirmed that she was not present for any of this conversation and was simply reporting what she had been told.

The witness noted that the Manager was on annual leave when this situation occurred and upon his return, he wrote to the complainant seeking confirmation regarding her communications on the issue of termination of employment. He confirmed in writing to her that she was on the roster for the following week, a copy of the e-mail was available at the hearing.

The complainant never wrote back to the Manager, but over the following days the respondent received notification of the WRC proceedings.

Under cross examination, the witness for the respondent, the Owner, noted that the complainant should not have been taken off the roster without her agreement and apologised to the complainant. The reason for the complainant being taken off roster for annual leave was only clarified to the complainant the following week.  She confirmed that the complainant was paid for the hours that she was removed from the roster and was subsequently paid for her outstanding holiday pay.

The respondent clarified that the complainant's rate of pay was €444.52 for up to 35 hours per week.

The position in relation to this complaint is that the complainant was put off roster, allegedly to take annual leave, without her prior authorisation. The fact that she would not be on roster for the following week is not at issue. The complainant stated that she was taken off roster without any notice and without any explanation. The respondent conceded this and apologised to the complainant.

Section 17(1) of the Organisation of Working Time Act states:

17.—(1) If neither the contract of employment of the employee concerned nor any employment regulation order, registered employment agreement or collective agreement that has effect in relation to the employee specifies the normal or regular starting and finishing times of work of an employee, the employee’s employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in each week that he or she proposes to require the employee to work, of the times at which the employee will normally be required to start and finish work on each day, or, as the case may be, the day or days concerned, that week, and the employee’s employer shall ensure the work takes place within predetermined reference hours and days.

The employee was placed on mandatory annual leave without any notification or agreement with immediate effect. Accordingly, I am satisfied that the Act has been contravened and I find that the complaint is well founded. I note that the complainant was paid for her time off and therefore I am satisfied that compensation for the contravention in the amount of €1000 is just and equitable in all the circumstances.

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the Act was contravened and that the compliant is well founded.  The respondent is required to pay the complainant compensation for the contravention in the amount of €1000 which I consider to be just and equitable in all the circumstances.

Organisation of Working Time Act – Notification of working times – no notice of mandatory holidays – Act contravened – compensation awarded.