DWT169

The matter came before the Court on December 17^th2015.

The Complainant

The Appellant operates a construction company. It employed the Complainant as a labourer. The Complainant states that he commenced employment with the respondent on 8 August 2011 and that his employment terminated when he was handed his P45 in March 2014. The Respondent disputes these dates stating that the Company came into being on 4 April 2013 and states that it could not have employed the Complainant before that date.

On 11 July 2014 the Complainant submitted a complaint under the Act to the Rights Commissioner. In it he complained that the Respondent had infringed sections 14, 19, 20, 21, 22 and 23 of the Act.

Complainants Case

Section 14

The Complainant states he regularly worked on Sunday. He states that he was not provided with a written contract of employment and was not told that his pay included a premium for working on Sunday. He states that, contrary to section 14 of the Act he was not paid a premium when working on Sundays.

The Respondent states that it did not require the Complainant to work on Sunday. It states that his working week ran from Monday to Saturday and did not involve any work on Sunday. It states it was not notified of the complaints under the Act when they were originally filed with the Labour Relations Commission as the Complainant recorded an incorrect company address on the Complaint Form. As a consequence the Company was not notified of the complaint at that time. The existence of the Complaint and the consequent decision of the Rights Commissioner only came to its attention when it was notified of enforcement proceedings before the Circuit Court. At that point it applied to this Court for a hearing of an appeal of the Rights Commissioner’s decision in accordance with the terms of the relevant legislation. This Court acceded to that request which led to the instant hearing before the Court. .As it was unaware of proceedings and as time had passed it did not retain copies of the relevant records relating to the Complainant’s employment. It stated that had it been notified in time it could have preserved the records of the Complainant’s employment. However at this time those records are no longer available and the Company is at a disadvantage in that regard.

Findings

It is common case that the Complainant last worked for the Respondent on 8 November 2013. His employment terminated in March 2014. Between those dates the complainant did not perform any work for the Respondent and accordingly the Court finds that he could not have worked on any of the Sundays that fell in that time. The complaint was filed with the Court on 11 July 2014. Section 27(5) of the Act states

• (5) Notwithstanding subsection (4) , a rights commissioner may entertain a complaint under this section presented to him or her after the expiration of the period referred to in subsection (4) (but not later than 12 months after such expiration) if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause.

The Complainant seeks an extension of time under that section of the Act. In support of the application he states that he was engaged in discussion with the Respondent who made several promises to him to pay him the claimed outstanding monies. He states that he held off filing the complaint until it became clear to him that the Respondent was delaying in an effort to allow the statutory time limit to pass. When he realised this he made his complaint without delay.

The Respondent denies that such discussions took place or that it delayed to allow the statutory time limit pass. It states that the Complainant left work on Friday 8 November 2013 was uncontactable until he returned to Ireland in March 2014. At that point he sought re-employment with the Company. When this was refused he filed his complaint.

The Court has considered all of the information and submissions before it. The Court takes the view that the statutory time limit is clear and that it can only be set aside where reasonable cause is shown. In this case the Court, having considered the submissions of both sides, is not persuaded that the Complainant has demonstrated reasonable cause for the delay in bringing the within proceedings.

Determination

The Complaint was submitted to the Rights Commissioner outside the statutory time limit. The Court determines that there are no valid grounds for extending the statutory time limit in this case. The Court accordingly does not have jurisdiction to hear the Complainant.

The decision of the Rights Commissioner is set aside. The Court so determines.

Annual Leave

The Complainant states that he was not provided with paid annual leave in accordance with Section 19 of the Act and further that he did not receive cesser pay for outstanding leave entitlements when his employment was terminated in March 2014.

The Respondent states that it paid the Complainant all annual leave to which he was entitled and further paid him cesser pay in respect of outstanding leave due to him when his employment was terminated.

Section 19 of the Act in relevant part states

• 
  (1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—
  • • (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):

    
    
    Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.

The Respondent states that the Complainant had acquired an entitlement to 5 days leave. However it produced no evidence to support that assertion. Under section 25 of the Act the Respondent is required to maintain records of the Complainant’s holidays. No such records were opened to the Court. Accordingly the burden of proving compliance with the Act lies with the Respondent.

The Court finds that the Respondent has failed to meet its statutory burden of proving compliance with the Act. The Court further finds that the Complainant, on the balance of probabilities, worked in excess of 1365 hours between April and November 2013. Moreover his employment continued until he was served with a p45 in March 2014 which purported to terminate his employment with effect from January 2014. However the Court was not presented with any evidence in support of the contention that the Respondent terminated the Complainant’s employment in January 2014. In fact the Respondent accepted that it did not effect delivery of the p45 to the Complainant until March 2014.

In the circumstances the Complainant remained in employment with the Respondent until March 2014 at which time his employment was ended. At that time he had been in employment, though not actually at work, for close on the entire statutory leave year.

Having considered the evidence before it the Court finds that, between April 1 2013 and 8 November 2013 the Complainant worked in excess of 1365 hours for the respondent. The Court further finds that the Complainant did not “change employment” within the relevant leave year.

Accordingly the Court finds that the Complainant accrued an entitlement to 4 weeks ( 20 days) annual leave in the leave year 2013/2014.

The Court has no evidence before it that the Respondent gave the Complainant any paid leave in the course of that leave year. Accordingly the Court finds that the Complainant is due cesser pay in respect of the 4 weeks (20 days) leave outstanding when his employment was terminated in March 2014.

The Complainant submitted pay slips to the Court that discloses that he was paid a weekly wage of €330.00. Based on that figure, which the Court finds is an accurate statement of his weekly rate of pay, the Complainant is due cesser pay in the amount of €1320.

Determination

The Complaint is well founded. The Court orders the Respondent to pay the Complainant compensation in the sum of €1320. The decision of the Rights Commissioner is varied accordingly. The Court so determines.

Public Holidays

The Complainant states that he was not paid for public holidays that fell during his period of employment with the Respondent. The Respondent argues that the Complainant had accrued an entitlement to 2 public holidays in the leave year commencing 1 April 2013. It argues that he took those holidays and was paid for them.

Findings

Section 21 of the Act states

• 
  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.

The Court has already determined that there is no ground for extending the time for bringing a complaint under the Act and accordingly the Court cannot consider any Public Holidays that occurred outside the six month statutory time limit.

Determination

The Complaint is not well founded. The decision of the Rights Commissioner is set aside. The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
11th February, 2016______________________
CCDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.