ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00001988
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-00001495-001 | 15th December 2016 |
Date of Adjudication Hearing: 27th April 2016
Workplace Relations Commission Adjudication Officer: Seán Reilly
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act 2015 and Section 27 of the Organisation of Working Time Act 1997, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant was submitting that the Respondent had not afforded him his outstanding accrued annual leave entitlements in accordance with the requirements of the Act at the termination of his employment. The Complainant was employed by the Respondent from 13th March 1989 to 30th October 2015; his rate of pay was €3,053.66c per month, which is €702.80c per week.
Preliminary Issue:
The complaint was presented to the WRC on 15th December 2015. In accordance with the provisions of Section 41(6) of the Workplace Relations Act 2015 this would make the relevant period under consideration for the purposes of the complaint in the instant case from 15th June 2015 and in relation to annual leave from 1st April 2015 (the holiday leave year in accordance with the provisions of the Organisation of Working Time Act 1997). However the Complainant made submissions that in accordance with Section 41(8) of the Workplace Relations Act 2015 “the failure to present the complaint within that (normal 6 month) period was due to reasonable cause.” The Complainant said that he was trying to resolve the issue of his outstanding annual leave entitlements with the Respondent and was being assured that it would be resolved and he would receive his full annual leave entitlements. The Complainant said that it was only when it became obvious that this was not going to happen that it became necessary and appropriate for him to refer a complaint under the Organisation of Working Time Act 1997. The Complainant said that this was reasonable cause that justified extending the normal 6 month relevant period by a further 6 months as provided for in Section 41(8) of the Workplace Relations Act 2015.
Substantitive Issues.
Summary of Complainant’s Submission:
After working for 26 years for the Respondent, I handed in my notice and worked my 4 weeks notice. I received my final payment on the 25th October but my holiday pay was not included (6.5 days). The Manager advised that this would be paid on their next run of wages, which was the 25th November. Payment has still not been paid and now the Manager is refusing to answer calls or emails and has advised that payment will not be made. |
The Complainant said that at the time his employment with the Respondent terminated he did not receive payment for his accrued, untaken annual leave. He said that he raised this regularly with the Respondent and was constantly assured that all his annual leave entitlements would be paid to him; he said that he had no reason not to believe that this would not happen. The Complainant included copies of some emails between the parties on the issue.
The Complainant said that he did receive some of his annual leave entitlements in the relevant period; however he did not receive all of his annual leave entitlements in accordance with the provisions of the Organisation of Working Time Act 1997.
The Complainant submitted detailed information in relation to annual leave entitlements taken or paid in relation to the relevant period and he submitted that he was still due at least €389.20c in that respect.
The Complainant sought a favourable decision and compensation for the breach of his rights as provided for in the Organisation of Working Time Act 1997.
Summary of Respondent’s Position:
The Respondent was not present or represented at the Hearing and they sent no submissions.
Findings and Decision:
Section 41(4) 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.
Section 27 of the Organisation of Working Time Act requires that I make a decision in relation to the complaints consisting of a grant of redress in accordance with the relevant redress provisions under Section 27(3) of that Act.
The Respondent was not present or represented at the Hearing and they sent no submissions, accordingly I only have the evidence and submissions of the Complainant in relation to these matters.
Preliminary Issue:
Based on the uncontested evidence of the Complainant I am satisfied that, in accordance with the provisions of Section 41(8) of the Workplace Relations Act 2015, “the failure to present the complaint within that (6 month) period was due to reasonable cause” and accordingly I am granting an extension of a further 6 months to the normal 6 months relevant period under consideration for the purpose of the complaint. Accordingly the period under consideration for the complaint in in respect of annual leave is from 1st April 2014.
Substantitive Issue:
Based on the uncontested evidence of the Complainant I find and declare that the complaint under Section 27 of the Organisation of Working Act 1997, in relation to annual leave entitlement in accordance with Sections 19, 20 and 23 of that Act is well founded and it is upheld.
In considering the appropriate redress I note that Article 11 of Council Directive 2002/15/EC upon which the Organisation of Working Time Act 1997 is based and which deals with penalties states: Member States shall lay down a system of penalties for breaches of the national provisions adopted pursuant to the Directive and shall take all the measures necessary to ensure that these penalties are applied. The penalties thus provided for shall be effective, proportional and dissuasive.”
In accordance with the provisions of Section 27 of the Organisation of Working Time Act I require the Respondent to pay the Complainant compensation in the sum of €800.00c within 6 weeks of the date of this decision for breach of his rights and entitlements under Sections 19, 20 and 23 of the Organisation of Working Time Act 1997.
Dated: 13th July 2016