ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002679

Complaint for Resolution:

Date of Adjudication Hearing: 02/08/2016

Workplace Relations Commission Adjudication Officer: Patsy Doyle

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.

Complainant’s Submission and Presentation:

The complainant commenced work as a Security Manager, working 15 hrs per week, receiving €300 gross pay per week. He worked from 21:00hrs to 4 am some time during 2015, the company was taken over by the respondent company and within six months, the company effectively locked out the complainant. He had not, among other matters received any holiday pay from the respondent .He was aware that the company Director had entered the premises late one Sunday night and removed all stock and cash from the premises. He was not given a contract, wage slips, P60 or P45 from the respondent.

The complainant was assured by the respondent subsequent to the closure that he would be paid but this did not happen.

Respondent’s Submission and Presentation:

No appearance on or behalf of the Respondent.

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.

Legislation involved and requirements of legislation:

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.

 Compensation on cesser of employment.

23

23.—(1) (a) 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.

(b) In this subsection—

‘relevant period’ means—

(i) in relation to a cessation of employment of an employee to whom subparagraph (i) of paragraph (c) of subsection (1) of section 20 applies, the current leave year,

(ii) in relation to a cessation of employment of an employee to whom subparagraph (ii) of the said paragraph (c) applies, that occurs during the first 6 months of the current leave year—

(I) the current leave year, and

(II) the leave year immediately preceding the current leave year,

(iii) in relation to a cessation of employment of an employee to whom subparagraph (iii) of the said paragraph (c) applies, that occurs during the first 12 months of the period of 15 months referred to in the said subparagraph (iii) —

(I) the current leave year, and

(II) the leave year immediately preceding the current leave year,

or

(iv) in relation to a cessation of employment of an employee to whom subparagraph (iii) of the said paragraph (c) applies that occurs during the final 3 months of the period of 15 months referred to in the said subparagraph (iii) —

(I) the current leave year, and

(II) the 2 leave years immediately preceding the current leave year.

Decision:

There was no appearance on or behalf of the respondent in this case. Neither did I receive a written submission from the company. I have no evidence before me that the respondent gave the complainant paid annual leave. The complainant submitted a CRO confirmation that the respondent company was actively trading .

I have given careful consideration to the uncontested evidence given by the complainant and I find that he accrued an annual leave entitlement from February 1, 2015 to when the respondent closed he business sometime in late November 2015, a period of 42 weeks .

The complainant has a respondent titled pay slip reflective of September 2015 and I accept his evidence that he worked on until November 2015. I accept that the respondent company was described as a “ cover company “ for the earlier employment . There has been no mention of a transfer of undertakings as provided for in TUPE.

I heard from the complainant that he had received his entitlement to annual leave from his earlier employer. I asked for evidence of payslips/P60 or P45 in the absence of a contract of employment issued by the present respondent.

From these documents, I found that the respondent appears to have taken over the business in February, 2015. The complainant worked 253 hrs @15 euro per hour up until the end of September, 2015 (as reflected in the pay slip annual total of €3,799.10).

Having considered the evidence, I find that between February 1 and November 30, 2015, the complainant worked in excess of 335 hours, and did not receive paid annual leave for 253 of those hours. The complainant is entitled to 20.24 hrs annual leave outstanding when his employment terminated in late November, 2015. Based on pay slips submitted which confirmed the hourly rate as €15 per hour.

I find that the complaint CA-00003711-001 is well founded and order compensation of €303.60 as cesser pay. IDM construction and services Ltd and Vasile Buzatu, DWT 169, Labour Court .

Dated:   27/10/2016