CORRECTION ORDER

ISSUED PURSUANT TO

SECTION 30 OF THE ORGANISATION OF WORKING TIME ACT 1997

SECTION 41 OF THE WORKPLACE RELATIONS ACT 2015

SECTION 88 OF THE EMPLOYMENT EQUALITY ACT 1998

This Order corrects the original Decision ADJ- 00031230 issued on 16th November 2022 and should be read in conjunction with that Decision.

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00031230

Parties:

	Complainant	Respondent
Anonymised Parties	A Kitchen Manager	A Café

Representatives

Self

Gerry Mitchell, HR Consultant

Complaints:

Act	Complaint Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00038847-001	14/07/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038847-002	14/07/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038847-003	14/07/2020
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973	CA-00038847-004	14/07/2020
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973	CA-00038847-005	14/07/2020
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973	CA-00038847-006	14/07/2020

Date of Adjudication Hearing: 21/10/2021, 29/03/2022, 07/07/2022

Workplace Relations Commission Adjudication Officer: Ewa Sobanska

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.

The hearings were held in person. At the adjudication hearing, the parties were advised that, in accordance with the Workplace Relations (Miscellaneous Provisions) Act 2021, hearings before the Workplace Relations Commission are now held in public and, in most cases, decisions are no longer anonymised.

The parties were also advised that the Workplace Relations (Miscellaneous Provisions) Act 2021 grants Adjudication Officers the power to administer an oath or affirmation. All participants who gave evidence were sworn in. The parties were given an opportunity to cross examine the evidence.

I heard a substantial volume of evidence during the hearing days and was provided with considerable quantity of documents and submissions.

I have taken time to review all the submissions and evidence both written and oral. I am not required to provide a line for line rebuttal of the evidence and submissions that I have rejected or found superfluous to the main findings. I have adopted the direction provided in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 at p.113 where O'Flaherty J. in the Supreme Court noted that minute analysis or reasons are not required to be given by administrative tribunals, but that the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one. Only broad reasons need be given:

“I would reiterate, what has been said on a number of occasions, that when reasons are required from administrative tribunals, they should be required only to give the broad gist of the basis for their decisions. We do no service to the public in general, or to particular individuals, if we subject every decision of every administrative tribunal to minute analysis.”

Following the issue of the original decision to the parties, the WRC received a request from the Complainant that the decision which would be published on the WRC website would not identify the parties. The WRC wrote to the Respondent’s representative by email seeking the Respondent’s comments regarding the Complainant’s request. The Respondent objected to the request to anonymise the decision.

The Adjudication Officer, having carefully considered the reasons put forward by the Complainant and relying on the discretion provided for by the relevant legislation determined that, arising from the evidence that had been given at hearings, and in light of the significant overlap between this case and the dispute referred by the Complainant under the Industrial Relations Act, special circumstances existed and that information which identified the parties should not be published.

Background:

The Complainant commenced her employment with the Respondent on 1st October 2018. The date of termination of employment was in dispute.

The Complainant referred a number of complaints against the Respondent to the Director General of the WRC on 9th October 2019, 19th March 2020 and 14th July 2020.

The within claims were heard in conjunction with complaints referred on 9th October 2019 bearing reference number ADJ-00024904, and complaints referred on 19th March 2020, bearing reference number ADJ-00027685.

The first adjudication hearing was held on 21st October 2021. The Complainant attended with her mother, Ms. R. On behalf of the Respondent, the Directors Ms. N and Mr. S were in attendance. They were represented by Mr. Gerry Mitchell, HR Adviser.

The second adjudication hearing was scheduled on 29th March 2022. The Complainant and Mr. S were in attendance. Mr. S applied for an adjournment. Having considered the reasons put forward, the Adjudication Officer granted the adjournment.

The third hearing took place on 7th July 2022. The Complainant, Ms. N, Mr. S, and Mr. Mitchell were in attendance.

The Respondent ceased trading in March 2020 after the Government pandemic guidelines forced closure of indoor eating. In February 2021, the Respondent initiated the process of voluntary strike-off. However, the process did not conclude as the Complainant objected to the voluntary strike-off procedure.

CA-00038847-001 - under section 6 of the Payment of Wages Act, 1991

Summary of Complainant’s Case:

The Complainant submits that she did not receive the appropriate payment in lieu of notice of termination of her employment.

Summary of Respondent’s Case:

The Respondent submitted that the Complainant was informed by email issued on 13th March 2020 that, due to circumstances beyond the Respondent’s control, it decided to cease trading. The email further informed that any outstanding monies will be paid on the last pay day on 20th March 2020. As the Complainant was on maternity leave, she was unavailable to work out her notice.

Findings and Conclusions:

The matter of minimum notice is dealt with in CA-00038847-004 and is, therefore, disposed of.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I declare this complaint to be not well founded.

CA-00038847-002 - under section 27 of the Organisation of Working Time Act, 1997

Summary of Complainant’s Case:

The Complainant submits that she did not receive her public holidays entitlements.

Summary of Respondent’s Case:

The Respondent submits that the Complainant received all her entitlements.

The Respondent exhibited an email from its accountant stating that the named accountancy firm did not act for the Respondent when the business commenced. Upon takeover in mid-2019, the accountant discovered that public holiday entitlements were not paid in 2018 and 2019 to date. The accountant did public holidays calculations based on 13 weeks average prior to public holidays and processed all unpaid public holidays in week 32 of 2019. All future public holidays were paid as they arose.

The Respondent furnished its accountant’s statement saying that 4 public holidays that fell in 2018 and 4 public holidays that fell in 2019 were paid to the Complainant in week 32 of 2019. The Respondent exhibited payslips showing the payment of arrears in week 32 of 2019.

The Respondent submitted that it acted in good faith and engaged a professional accountant to look after the payment. It said that there has been no evidence furnished by the Complainant to clarify how did she come up with her figures.

Findings and Conclusions:

The Complainant referred her complaints to the Director General of the WRC on 14th July 2020. Therefore, the cognisable period is from 15th January 2020 to 14th July 2020. The period to 19th March 2020 was addressed in the adjudication decision in the complaint bearing reference number ADJ-00027685.

There were three public holidays in the cognisable period, namely Easter Monday, first Monday in May and first Monday in June.

Section 21 of the Organisation of Working Time Act, 1997 provides that: (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.

22(1) The rate—

(a) at which an employee is paid in respect of a day off under section 21, and

(b) of an employee’s additional day’s pay under that section, shall be such rate as is determined in accordance with regulations made by the Minister for the purposes of that section.

(2) For the purposes of section 21, time off granted to an employee under that section or section 19 shall be regarded as time worked by the employee.”

Accordingly, the Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997 (S.I. 475/1997) provides for the calculation of public holiday pay (along with the calculation of holiday pay).

Based on the provision at Section 25(4) of the Act, the onus of proving compliance with the Act rests with the Respondent. In Jakonis Antanas v Nolan Transport [2011] 22 E.L.R. 311 the Court held in relation to the application of that subsection as follows: -

“The burden on a respondent of proving compliance with the Act arises in proceedings in which a complaint of non-compliance is made. It is clear from s.27(2) of the Act that the jurisdiction of the Rights Commissioner is invoked by an aggrieved worker, or his or her trade union, by presenting a complaint to a Rights Commissioner that his or her employer has contravened a relevant provision of the Act in relation to him or her. The subsection goes on to provide that where a complaint is made the Rights Commissioner shall give the parties an opportunity to be heard and to present to the commissioner any evidence relevant to the complaint.

This suggests that the evidential burden is on the claimant to adduce such evidence as is available to support a stateable case of non-compliance with a relevant provision of the Act. It seems to the Court that, as a matter of basic fairness, the claimant should be required to do so with sufficient particularity as to allow the respondent to know, in broad terms, the nature of the complaint and the case which they are expected to meet. As was pointed out by Lord Devlin in Bratty v Attorney General for Northern Ireland [1963] A.C. 386 an evidential burden is satisfied where the evidence adduced is sufficient to “suggest a reasonable possibility”

The respondent should then be called upon to put the records required by s.25(1) of the Act in evidence showing compliance with the relevant provision in issue. If records in the prescribed form are produced the legal burden will be on the claimant to satisfy the Rights Commissioner, or the Court on appeal, that the records ought not to be accepted as evidence of compliance. Thus the claimant will bear both the evidential and the legal burden of proving, on the balance of probabilities, that his or her rights under the Act were contravened in the manner alleged. If the claimant fails to discharge that burden he or she cannot succeed.

Where records in the prescribed form are not produced, and the claimant has satisfied the evidential burden which he or she bears, it will be for the respondent to establish on credible evidence that the relevant provision was complied with in relation to the claimant. The respondent will thus be required to carry the legal burden of proving, on the balance of probabilities, that the Act was not contravened in the manner alleged by the claimant. If the respondent fails to discharge that burden the claimant will succeed.”

I note that the Respondent’s view on the matter is that the Complainant’s employment, similarly to all other staff of the Respondent was terminated by email dated 13th March 2020 with the final pay on 20th March 2020.

However, Section 40(3) of the Maternity Protection Act, 1994 as amended Provisions applying where employee not permitted to return to workprovides that; -

“(3) For the purposes of the Minimum Notice and Terms of Employment Act 1973, the contract of employment of an employee to whom this section applies who is also an employee to whom that Act applies shall be deemed to have been terminated on the expected date of return.”

The Complainant’ maternity leave commenced on 16th December 2019, and she was due to return to work on 15th June 2020. The Complainant did not notify the Respondent of her intention to take an additional maternity leave. She emailed the Respondent on 15th May 2020 informing of her intention to return to work on 16th June 2020.

Section 40(3) provides that the date of termination of employment, in the case of employees where employment has ceased during a period of protective leave or natal care absence, is the date on which the employee would have resumed work had the employment not ceased before the due date of resumption. In the within case the date on which the Complainant would have resumed work is 15th June 2020.

Consequently, the Complainant’s employment was deemed to be terminated on the day she was due to return to work from her maternity leave, namely 15th June 2020. The Complainant was therefore entitled to the public holidays benefit for the public holidays that fell in the cognisable period prior to the termination of her employment (i.e., one-fifth of 30 hours per week at the rate of €14 per hour).

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I declare this complaint to be well-founded. I order the Respondent to pay the Complainant compensation in the sum of €252.

CA-00038847-003 - under section 27 of the Organisation of Working Time Act, 1997

Summary of Complainant’s Case:

The Complainant submits that she was not compensated for the loss of her public holidays entitlements on leaving.

Summary of Respondent’s Case:

The Respondent submits that the Complainant received all her entitlements.

Findings and Conclusions:

The matter of public holiday entitlements is dealt with in 00038847-002 above and is, therefore, disposed of.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I declare this complaint to be not well founded.

CA-00038847-004 - Section 12 of the Minimum Notice & Terms of Employment Act, 1973

Summary of Complainant’s Case:

The Complainant submits that she did not receive her statutory minimum period of notice on the termination of her employment or payment in lieu.

Summary of Respondent’s Case:

Findings and Conclusions:

The Minimum Notice and Terms of Employment Act, 1973 stipulates as follows;-

“Section 4 Minimum period of notice

(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,”

The Complainant commenced her employment with the Respondent on 1st October 2018.

The date of dismissal was in dispute. The Respondent asserted that the Complainant was notified of the termination of her employment by email of 13th March 2020 and the final pay with outstanding entitlements was processed on 20th March 2020. Therefore, the Complainant employment terminated on 20th March 2020.

The Complainant asserted that the date of dismissal was 14th June 2020, which was the last day of her maternity leave.

Section 40. Provisions applying where employee not permitted to return to work of the Maternity Protection Act 1994, as amended provides that; -

Second Schedule Rights of Employee During Period of Notice of the Minimum Notice and Terms of Employment Act, 1973 stipulates as follows; -

1.

Subject to the provisions of this Schedule, an employee shall, during the period of notice, be paid by his employer in accordance with the terms of his contract of employment and shall have the same rights to sick pay or holidays with pay as he would have if notice of termination of his contract of employment had not been given.

Employments for which there are normal working hours 2. (a) (i) An employee shall be paid by his employer in respect of any time during his normal working hours when he is ready and willing to work but no work is provided for him by his employer. (ii) In this subparagraph “normal working hours” in the case of an employee who is normally expected to work overtime, include the hours during which such overtime is usually worked.

(b) In any case where an employee's pay is not wholly calculated by reference to time, the pay which his employer is bound to pay him under subpara.(a) shall be calculated by reference to the average rate of pay earned by the employee in respect of any time worked during the thirteen weeks next preceding the giving of notice.

Employments for which there are no normal working hours

3.

Subject to para.4 of this Schedule, an employer shall pay to an employee, if there are no normal working hours for that employee under the contract of employment in force in the period of notice, in respect of each week in the period of notice, a sum not less than the average weekly earnings of the employee in the thirteen weeks next preceding the giving of notice.

4.

An employer shall not be liable to pay to his employee any sum under para.3 of this Schedule unless the employee is ready and willing to do work of a reasonable nature and amount to earn remuneration at the rate mentioned in the said para.3.

The Second Schedule of the Minimum Notice and Terms of Employment Act 1973 provides that where an employee is absent during the notice period, although entitled to notice, as the employee is not able to work, they have no entitlement to pay. In the within case, the Complainant was on maternity leave and was in receipt of the maternity benefit from the Department of Employment Affairs and Social Protection. She was, therefore, not ready to do work and, consequently, was not entitled to a payment with respect to minimum notice.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I declare this complaint to be not well founded.

CA-00038847-005 - Section 12 of the Minimum Notice & Terms of Employment Act, 1973

Summary of Complainant’s Case:

The Complainant submits that she did not receive her rights during the period of notice.

Summary of Respondent’s Case:

The Respondent submits that the Complainant received an email notifying her of the termination of her employment. She was on maternity leave at the time. All outstanding payment were made to her.

Findings and Conclusions:

Section 5 of the Minimum Notice & terms of Employment Act, 1973 provides as follows; -

5. Rights of employee during period of notice

(1) The provisions of the Second Schedule to this Act shall have effect in relation to the liability of an employer during the period of notice required by this Act to be given—

(a) by an employer to terminate the contract of employment of an employee who has been in his continuous service for thirteen weeks or more, and

(b) by an employee who has been in such continuous service to terminate his contract of employment with that employer.

(2) This section shall not apply in any case where an employee gives notice to terminate his contract of employment in response to a notice of lay-off or short-time given by his employer.

(3) Any provision in a contract which purports to exclude or limit the obligation imposed on an employer by this section shall be void.

The matter of payment for the period of minimum notice is dealt with in CA-00038847-004. The Complainant did not put forward any other entitlement she allegedly did not receive.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I declare this complaint to be not well founded.

CA-00038847-006 - Section 12 of the Minimum Notice & Terms of Employment Act, 1973

Summary of Complainant’s Case:

The Complainant submits that her employer did not receive minimum notice of termination of the contract from an employee.

Summary of Respondent’s Case:

The Respondent submits that the only reference to the termination of the contract by the Complainant is within her contract and was reduced from 2 weeks to 1 week notice as per the contract issued to the Complainant in August 2019.

Findings and Conclusions:

Section 6 of the Minimum Notice & Terms of Employment Act, 1973

“6. Right of employer to notice

An employer shall, subject to the right of an employee to give counter-notice under section 10 of the Act of 1967 or to give notice of intention to claim redundancy payment in respect of lay-off or short-time under section 12 of that Act, be entitled to not less than one week's notice from an employee who has been in his continuous employment for thirteen weeks or more of that employee's intention to terminate his contract of employment.”

The Complainant appears to have misconstrued the provisions of the above section. Section 6 above provides that employees who have been in continuous employment for at least 13 weeks are obliged to provide their employer with one weeks’ notice of termination of employment.

In light of the above, I find that the complaint is misconceived.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I declare this complaint to be not well founded.

Dated: 16th November 2022

Workplace Relations Commission Adjudication Officer: Ewa Sobanska

Key Words:

Minimum notice – public holidays