ADJ-00052791

Adjudication Reference:  ADJ-00052791

Parties:

Complaints:

Date of Adjudication Hearing:  18/11/2024

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Procedure:

These complaints were referred under Section 41 of the Workplace Relations Act 2015 to the Workplace Relations Commission (hereinafter ‘WRC’) on 6th July 2024.  Following delegation to me by the Director General, I inquired into these complaints and gave the Parties an opportunity to be heard and to present any relevant evidence.  They were initially scheduled for a remote hearing on 2nd October 2024.  The Respondent was listed as trading normally but had not engaged with the WRC and there was no attendance on its behalf.  As the hearing notification had been posted by ordinary post to the shop where the Complainant had last worked which had subsequently closed down, I adjourned the hearing to enable a new hearing notification dated 8th October 2024 to be sent to the Respondent’s registered office by registered post.  Again there was no attendance on behalf of the Respondent at the resumed hearing on 18th November 2024.  Follow-up phone-calls by the WRC to the Secretary and Director went unanswered.  All efforts to contact the Respondent by alternative means were also unsuccessful.  Having satisfied myself that the Respondent had been properly notified, I proceeded to hearing.  The hearing was held in public.  The Complainant gave evidence under affirmation and furnished documentation vouching her complaints. 

Background:

The Complainant was employed by the Respondent between 16th November 2022 and 6th April 2024.  She sought compensation for the Respondent’s failure to pay her in lieu of her accrued annual leave upon leaving and failure to provide her with written terms of employment during the course of her employment. 

CA-00064623-001 – Complaint under Section 27 of the Organisation of Working Time Act 1997 – Non-payment in lieu of accrued annual leave on cessation of employment

Summary of Complainant’s Case:

The Complainant commenced working at a womenswear store called ‘Safura’ in Arklow, Co. Wicklow owned by the Respondent on 16th November 2022.  The store had to be closed and she agreed to transfer to another shop in Enniscorthy, Co. Wexford in July 2023.  She worked eight hours on Saturdays.  In March 2024, her working hours were reduced from eight hours to four hours.  This made her employment untenable leading her to leave on 6th April 2024.  It appeared that the business was in difficulty and that shop also subsequently closed.  At the material time, the Complainant earned €12.70 per hour or €50.80 per week.  Her final payslip furnished did not include any pay in lieu of accrued annual leave totalling €320.

The Complainant reached out to the Accounts Department seeking payment in lieu of her accrued annual leave.  She was informed that they were unable to assist her and directed her to her Supervisor, also the Respondent’s Secretary.  Despite multiple phone calls and text messages, her Supervisor never responded.  She also contacted his wife who is a Director of the Respondent.  She had reassured the Complainant that she would discuss the issue with her husband but to date, she has not received any response or payment.

Summary of Respondent’s Case:

The Respondent did not attend at either hearing to proffer any evidence in rebuttal of this complaint.

Findings and Conclusions:

In relation to compensation in lieu of annual leave entitlement upon the cessor of employment, Section 23(1)(a) of the Organisation of Working Time Act 1997 provides: “Where- (i) an employee ceases to be employed, and (ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee, the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave.”  In circumstances where the Complainant has provided vouched and credible evidence, I am satisfied on the balance of probabilities that as of the date of the termination of her employment, €320 in lieu of annual leave was due and owing by the Respondent to the Complainant.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in accordance with the requisite redress provisions.  For the aforesaid reasons, I find this complaint to be well-founded.  Section 27(3) of the Organisation of Working Time Act 1997 provides: “A decision of an adjudication officer under Section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely: (a) declare that the complaint was or, as the case may be, was not well founded, (b) require the employer to comply with the relevant provision, (c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.”  I consider it just and equitable in all of the circumstances including the loss of benefit of annual leave, to direct that the Respondent pays the Complainant compensation in the sum of €500 (comprising of €320 in unpaid leave subject to any lawful deductions and €180 in compensation).

CA-00064623-002 – Complaint under Section 7 of the Terms of Employment (Information) Act 1994 – No written statement of terms of employment

Summary of Complainant’s Case:

The Complainant contends that she never received a written statement of the terms of her employment contrary to Section 5 of the Terms of Employment (Information) Act 1994.  She gave evidence confirming that upon commencement of her employment she had received a written contract.  As it was out of date in terms of her public holiday and sick pay statutory entitlements, she had returned it for amendment.  However and despite requesting same, she never received a correct version during her employment. 

Summary of Respondent’s Case:

The Respondent did not attend at either hearing to proffer any evidence in rebuttal of this complaint.

Findings and Conclusions:

As at the commencement of the Complainant’s employment on 16th November 2022, Section 3(1) of the Terms of Employment (Information) Act 1994 provided that: ”An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment,” as listed therein.  Again, I find the Complainant’s evidence to be credible and am satisfied on the balance of probabilities that she was never given a written statement of the terms of her employment by the Respondent in contravention of Section 3 of the Terms of Employment (Information) Act 1994.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in accordance with the requisite redress provisions.  For the aforesaid reasons, I find this complaint to be well-founded.  In addition to various remedies dealing with the provision / content of a written statement, Section 7(2) provides that an Adjudication Officer may “…order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment calculated in accordance with the Regulations under Section 17 of the Unfair Dismissals Act 1977.”  Noting that the Respondent had made an effort to comply with the legislation and provide a contact albeit outdated, I direct a sum of €101.60 (2 weeks’ remuneration) in compensation as being just and equitable in all the circumstances.

Overall Award:

For the avoidance of doubt, the overall award to the Complainant in respect of both complaints is €601.60.

Dated:  

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Key Words:  Non-payment of pay in lieu of accrued annual leave upon cessor of employment contrary to Section 23(1)(a) of the Organisation of Working Time Act 1997 – No written statement of the terms of employment given to employee contrary to Section 3 of the Terms of Employment (Information) Act 1994