ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000523

Complaint for Resolution:

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-00000773-001	3rd November 2015

Date of Adjudication Hearing: 31st March 2016

Workplace Relations Commission Adjudication Officer: Sean Reilly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act 2015 and Section 27 of the Organisation of Working Time Act 1997following 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 Complaint was submitting that the Respondent was in breach of her rights and entitlements under Sections 19, 20 and 23 of the 1997 Act in relation Annual Leave and also in relation to Sections 21, 22 and 23 of the 1997 Act in relation to Public Holidays.

The Complainant was employed by the Respondent from June 2012 to 13^th September 2015 and her weekly rate of pay was €411.33c gross. The Complainant said that her weekly working hours varied between 33 and 44 per week, averaging at 38 hours per week. The Complaint was presented to the WRC on 3^rd November 2015.

Summary of Complainant’s Case:

While working in in the (Respondent Company) as a Carer, I was paid on a fortnightly basis. When a bank holiday came I was paid a percentage of what I previously worked, which most times was 7.8 hours. What confused me was when I added up my annual leave I always had to deduct whatever bank holidays I got paid for from my annual leave. I was under the impression Annual Leave and Bank Holidays were separate, i.e. if I was owed 60 hours and got paid two bank holidays I had to deduct 15.6 hours from my annual leave. So I feel we were not actually getting paid for bank holidays. Before I left my employment in September I approached the person who does pay and asked her to explain things to me, but sorry to say came away none the wiser. On the same day two other employees questioned bank holidays, so I was not the only employee concerned. What I found to be confusing was I took a weeks holidays in August and as my records was owed 59 hours less my bank holiday, but after approaching the person who does wages/pay, I noticed there was no deduction made for bank holidays. I got paid 40 hours pay for my week’s holidays and the remaining 19 hours plus what other holidays I had worked when I resigned on 18^th September 2015. A week after I left, I met an employee of the Respondent who informed me bank holidays were no longer deducted from annual leave. I emailed the wages person on several occasions, but could still not get a straight answer. On 2^nd October 2015 I sent an email to the wages person explaining I had my rosters and could print them off. I received an email back on the same day stating I was not to print any rosters off for my friend to help me out to make up my hours under the provisions of the Data Protection Acts, but I know the main reason I was not to print them off. Just after I received this email I received a ‘phone call from a named Company Director, which I was unable to take – but I did try to contact him twice, but he never returned my calls, so I sent the wages person an email explaining I had tried contact the Director but he never returned my call, so I was going to return my (complaint) Form to N.E.R.A. What I could not understand was I was told not to print of rosters and still for the years I was employed at the Nursing Home, the roster was on a notice board for everyone to see - including visitors to the Nursing Home, this only changed at the end of July 2015, when rosters were put behind the Nurses Station. I have all the emails I sent to the wages person and the ones I received from her and I can print them of if needs be. On one of the emails I received from the wages person it was the holidays I was paid, but still does not explain why bank holidays were deducted. When the wages person emailed me she said the reason she asked did I deduct was to ensure that she got the right balance, so I feel this proves bank holidays are taken from annual leave. I feel, if this investigation is to be continued I have a right to print off my rosters when I am using them for my benefit and I also believe under law I have freedom of speech and should be allowed express my opinion in what I feel is right and wrong as employed citizen of Ireland who is paying all my dues.

The Complainant elaborated upon the above submissions that were included in her written Complaint Form submitted to the WRC.

The Complainant again stated she had been told that public holidays were deducted from annual leave entitlements accrued.

Following the submissions of the Respondent the Complainant went through hours worked for the relevant period and annual leave taken and annual paid for at the end of the employment to ascertain if public holidays were in fact been deducted from annual leave entitlements accrued.

In that respect the Complainant submitted that she was due the total amount of annual leave of 168.08 hours in the relevant period and it was established that she actually received 170 hours of annual leave either taken or paid at the termination of her employment.

Summary of Respondent’s Position:

The Respondent was denying and refuting the complaints and submissions made by the Complainant

The Respondent said that public holidays were not deducted from annual leave entitlements accrued by the Complainant or any employees.

The Respondent said that both annual leave and public holidays were calculated, given and paid to all employees in accordance with the provisions of the Organisation of Working Time Act 1997.

In relation to public holidays the Respondent said that if an employee worked on a public holiday they were paid for the actual hours worked on that day plus a days pay of 7.8 hours (the 7.8 hours was based on a normal working week of 39 hours and was as provided for in the 1997 Act 1/5^th of that week for each public holiday). When an employee did not work on a public holiday they received an extra 7.8 hours pay (based on same as previous) and the Respondent said that this applied to all employees, including the Complainant and submitted this was fully in accordance with the provisions of the 1997 Act.

The Respondent submitted that the evidence clearly demonstrated that public holidays were not deducted from the Complainant’s annual leave entitlements.

The Respondent said the Complainant received annual leave entitlements - between paid holidays taken and holiday pay paid at the termination of her employment - of 172 hours and submitted that this was fully in accordance with the provisions of the 1997 Act.

The Respondent said that the complaints were not well founded and should be rejected.

Findings and Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 27 of the Organisation of Working Time Act 1997 requires that I make a decision in relation to the complaints consisting of a grant of redress in accordance with Section 27(3) of the 1997 Act.

I have carefully considered the evidence and the submissions made and I have concluded as follows in relation to the complaints under Section 27 of the Organisation of Working Time Act 1997.

The Complainant alleges that public holidays were deducted from her annual leave entitlements. She does not allege that she did not receive her public holiday entitlements; rather she alleges that public holidays taken and paid for were then deducted from her annual leave entitlements.

It was agreed between the parties that the Complainant worked 1,519.50 hours in the relevant period. This would entitle the Complainant to 121.56 hours of annual leave (i.e. 8% of 1,519.50). It was further agreed that the Complainant had carried forward 44.94 hours of annual leave entitlements from the previous leave period; this left a total entitlement of 166.50 hours annual leave accrued for the relevant period (i.e. 44.94 + 121.56). It is not in dispute that the Complainant actually received 172 hours between paid holidays taken and holiday pay received at the termination of her employment. Thus it is perfectly plain that there were no deductions from the Complainant’s annual leave entitlements, either in respect of public holidays or otherwise.

Based on the foregoing findings I declare that the complaints under Section 27 of the Organisation of Working Time Act 1997 in relation to annual leave and public holiday entitlements under Sections 19, 20, 21, 22 and 23 of the Organisation of Working Time Act 1997 are not well founded; they are rejected and are not upheld.

Dated 1^st July 2016