ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00000839
Complaint(s)/Dispute(s) 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-00001215-001 | 02/12/2015 |
Date of Adjudication Hearing: 24/03/2016
Workplace Relations Commission Adjudication Officer: Michael Hayes
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and the abovementioned Act following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Complainant’s Submission and Presentation:
On finishing my employment at the restaurant I did not receive the correct amount of holiday pay entitlement. I never took any holidays whilst working. My employer agreed to carry over my holidays from 2014 . I asked about this several times and was told there would be no time limit and he would pay me my holidays from 2014. On receiving my final payslip I was only paid 9.5days holidays and 6 bank holiday days for the two years. My employer confirmed this was for the two years but refused to discuss how they were calculated. He arranged to meet me in any empty restaurant and i found him to be bullying and intimidating. All he would say is that was it and that he had deducted holidays off for sick days. I explained I felt it was incorrect and he said he would check it again and get back to me but never did. I received my final payslip on the 6/11/15 , following that i did not receive my final wage until 17/11/15 and it was incorrect, I was payed 2067.11 where as my payslip states it should have been 2097.11 In both 2014 and 2015 I would have worked over 1365 hours . My work hours varied from 45-90 hours per week. The restaurant opened on the 12th May 2014, it closed on the 15/12/2014 and reopened on the 6/02/15 and I finished there on the 28/10/2015 after working out my notice. From 17/11/2014 until 15/12/2014 we were open four days a week. I would have still worked 45 hours or over in those weeks. |
The complainant submits that she did not receive her full entitlement to public holiday and annual leave entitlement in accordance with the provisions outlined in the Act. In essence she should have received payment for Annual Leave in the total amount of €3,950 and payment for Public holiday in the amount of €1,760 for which she was paid €1,520 and €960 respectively.
Legislation involved and requirements of legislation:
Organisation of Working Time Act, 1997: -
- —(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—
(c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):
and
- —(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—
(c) an additional day of annual leave,
Decision:
Based on the uncontested evidence adduced at hearing I find that the herein complaints are well founded and that there was material breach of s. 19 and s. 21 of the Act.
Accordingly I hereby require that the respondent pay the claimant compensation in the amount of €3,500 (say three thousand five hundred euro inclusive of the underpayment) for breach of s. 19 of the Act and €1,500 (say one thousand five hundred euro inclusive of the amount of underpayment) for breach of s. 21 of the Act.
Dated: 14/11/2016