Complainant

Respondent

Parties

Alison  Tynan

Randridge International

Representatives

Roberta Urbon Peninsula Business Services Ireland

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-00064758-001

14/07/2024

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

CA-00064758-002

14/07/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00064758-003

14/07/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00064758-005

14/07/2024

The Complainant was employed as an Accounts Assistant with the Respondent from 2 October 2013. She stated that she did not receive outstanding wages as well as her notice and holiday entitlements when her employment ended on 5 July 2024.

The Complainant stated that she is owed wages for the week ending 28 June 2024 amounting to EUR 683.20

She also stated that she was owed a further amount of EUR 614.88 in respect of outstanding holiday entitlements when her employment ended on 5 July 2024.

She also added that she did not receive her notice entitlements namely six weeks’ notice pay in the amount of EUR 4,684.80

The Complainant also alleged that she is owed wages for the week ending 5 July 2024 amounting to EUR 512.40 that she was not paid.

The Respondent accepted that the Complainant is owed wages for the week ending 28 June 2024 amounting to EUR 683.20

It was also accepted that she was owed a further amount of EUR 614.88 in respect of outstanding holiday entitlements when her employment ended on 5 July 2024.

It was further accepted that she did not receive her notice entitlements namely six weeks’ notice pay in the amount of EUR 4,684.80

The Respondent accepted that the Complainant is owed wages for the week ending 5 July 2024 amounting to EUR 512.40 that she was not paid.

CA-00064758-001:

Section 1 of the Payment of Wages Act 1991 (“the Act”) defines wages as:

“any sums payable to the employee by the employer in connection with his employment, including—

(a)   any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise,”

In Marek Balans -v- Tesco Ireland Limited [2020] IEHC 55 approving Dunnes Stores (Cornels court) Limited -v- Lacey [2007] 1 1.R. 478, it was stated a decision-maker must firstly determine what wages are properly payable under the employment contract before determining whether there has been a deduction under the Payment of Wages Act 1991.  While each case will turn on its own particular facts, it is necessary to ascertain, in the instant case, (1) whether the pay constituted a term of the Complainant’s contract and (2) if has there been a contravention of Section 5 of the Act.

Given the undisputed evidence of the Complainant, I am satisfied that she was not paid in the amount of €683.20 in wages that she was owed by the Respondent.

CA-00064758-002:

The Law

Article 7 of the Working Time Directive (2003/88/EC) sets out the entitlement to paid annual leave as follows:

“Annual Leave 1.  Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice.  2. The minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is ended.”   

This provision is transposed into Irish lay by virtue of the enactment of Sections 19, 20 and 23 of the Organisation of Working Time Act.

Section 19 of the Organisation of Working Time Act 1997 outlines that an employee’s annual leave entitlement is based on the amount of time that they have worked during the year as is calculated in three ways:

(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):

Section 20 (1) deals with the times at which annual leave is granted to an employee and this is determined by the employer subject to a number of provisions:

(a)   The employer taking into account-

(i)               The need for the employee to reconcile work and any family responsibilities,

(ii)              The opportunities for rest and recreation available to the employee.

(b)   To the employer having consulted the employee or the trade union (if any) of which he or she is a member, not later than one month before the day on which the annual leave or, as the case may be, the portion thereof concerned is due to commence, and

(c)    To the leave being granted within the leave year to which it relates or, with the consent of the employee, within 6 months thereafter.

(2) The pay in respect of an employee’s annual leave shall –

(a) be paid to the employee in advance of his or her taking the leave,

(b) be at the normal weekly rate or, as the case may be, at a rate which is proportionate to the normal weekly rate, and ….”

Section 21 of the Acts states as follows in relation to public holidays:

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:

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.

(2) An employee may, not later than 21 days before the public holiday concerned, request his or her employer to make, as respects the employee, a determination under subsection (1) in relation to a particular public holiday and notify the employee of that determination at least 14 days before that holiday.

(3) If an employer fails to comply with a request under subsection (2), he or she shall be deemed to have determined that the entitlement of the employee concerned under subsection (1) shall be to a paid day off on the public holiday concerned or, in a case to which the proviso to subsection (1) applies, to an additional day's pay.

(4) Subsection (1) shall not apply, as respects a particular public holiday, to an employee (not being an employee who is a whole-time employee) unless he or she has worked for the employer concerned at least 40 hours during the period of 5 weeks ending on the day before that public holiday.

(5) Subsection (1) shall not apply, as respects a particular public holiday, to an employee who is, other than on the commencement of this section, absent from work immediately before that public holiday in any of the cases specified in the Third Schedule .

(6) For the avoidance of doubt, the reference in the proviso to subsection (1) to a day on which the employee is entitled to a paid day off includes a reference to any day on which he or she is not required to work, the pay to which he or she is entitled in respect of a week or other period being regarded, for this purpose, as receivable by him or her in respect of the day or days in that period on which he or she is not required to work as well as the day or days in that period on which he or she is required to work.

Findings:

As set out in the Act above, an employee is entitled under this legislation to 4 weeks or 20 days annual leave per year. He/she is also entitled to ten public holidays per year.

The Complainant stated that she was owed outstanding annual leave at the end of her employment. The Respondent accepted this and calculated the amount owing to be EUR 614.88.

As the Complainant did not receive her outstanding holiday entitlement when her employment ended and the Respondent did not dispute this, I find that this complaint is well founded.

CA-00064758-003:

Section 4 of the Minimum Notice and Terms of Employment Act, 1973, states:

(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.

(2)    The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be –

(a) if the employee has been in the continuous service of his employer for less than two years, one week,

(b) if the employee has been in the continuous service of his employer for two years or more but less than five years, two weeks

c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks,

(d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks,

Based on the undisputed evidence provided by the Complainant, I am satisfied that she did not receive her minimum notice entitlements. Specifically, considering her length of service, which exceeded ten years but was less than fifteen years, she is entitled to six weeks’ notice.

CA-00064758-005:

Section 1 of the Payment of Wages Act 1991 (“the Act”) defines wages as:

“any sums payable to the employee by the employer in connection with his employment, including—

(a)   any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise,”

In Marek Balans -v- Tesco Ireland Limited [2020] IEHC 55 approving Dunnes Stores (Cornels court) Limited -v- Lacey [2007] 1 1.R. 478, it was stated a decision-maker must firstly determine what wages are properly payable under the employment contract before determining whether there has been a deduction under the Payment of Wages Act 1991.  While each case will turn on its own particular facts, it is necessary to ascertain, in the instant case, (1) whether the pay constituted a term of the Complainant’s contract and (2) if has there been a contravention of Section 5 of the Act.

Given the undisputed evidence of the Complainant, I am satisfied that she was not paid in the amount of €512.40 in wages that she was owed by the Respondent.

CA-0064758-001:

I find that this complaint is well founded for the reasons set out above and direct that the Respondent pay compensation to the Complainant in the amount of EUR 683.20. This is a gross figure and is subject to taxation and any statutory deductions.

CA-00064758-002:

I find that this complaint is well founded for the reasons set out above. As the Complainant did not dispute the calculation provided by the Respondent, I direct that she be paid compensation in the amount of EUR 614.88.

CA-00064758-003:

I find that this complaint is well founded for the reasons set out above and direct that the Respondent pay compensation to the Complainant in the amount of EUR 4,684.80

CA-00064758-005:

I find that this complaint is well founded for the reasons set out above and direct that the Respondent pay compensation to the Complainant in the amount of EUR 512.40. This is a gross figure and is subject to taxation and any statutory deductions.