ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00009654
Parties:
Complainant Respondent
Chef Cafe
Complaint(s):
ActComplaint/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-00012639-001 19/07/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00012639-002 19/07/2017
Date of Adjudication Hearing: 09/10/2017 Workplace Relations Commission Adjudication Officer: Maire Mulcahy
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following 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
Background:
1.CA-00012639-001; holiday entitlement Claimant commenced employment as a chef with the respondent on the 4/10/15. In the beginning of December, 2015 he asked if he could use up his holidays before the New Year but states that the head chef asked him to postpone his leave until 2016 as they were busy and short staffed. Complainant states in the form submitted to the WRC that he did not receive his paid annual leave for 2015, nor for 2016. He is seeking payment for these periods. He advises that he worked 39 hours per week. His gross pay was €12.50 an hour. He submitted his notice on 4/6/17 and terminated his employment with the respondent on 18/6/17. He submitted his complaint submitted to the WRC on 19/7/2017.
2.CA-00012639002; public holidays The complainant contends that he did not receive payment for public holidays for the years 2015 and 2016 and received payment for 2 public holidays in 2017.
Summary of Complainant’s Case:
1.Ca-12639-001; holiday entitlement The complainant does not have a contract of employment. He received no paid leave in 2015. He states that he received 3 days paid leave in his salary on 1/11/2016 and that he is owed 17 days for 2016. He states that he got his annual leave for 2017. In November,2015 he requested leave and was asked to postpone until 2016 as they were busy. He repeated this request in November 2016. He states that the HR manager asked him to carry over his leave until 2017 as the Head chef had left. On the 4/6/ 17 he handed in two weeks’ notice. His last day of work was 18 June. He advises that the HR manager told him that she would calculate his leave for 2017 but not for previous years. The respondent’s representative made an offer of €1769 to the complainant which, though they stated was contrary to their company policy, provided for the carry- over of some leave from 2016. The proposed sum of €1769 was to be paid in 6 instalments and was short of what the complainant believed he was owed. The complainant rejected this offer. The complainant advises that he did not apply for the annual leave until November 2016 as he was advised that he could carry over his annual leave. There is no policy in the company which disallows the carry- over of leave from one year to another. The complainant advised that the process in trying to secure his annual leave payments has caused him a lot of stress.
2.CA-00012639002. The claimant advises that he is owed payment for public holidays as follows: 2015: The complainant is seeking payment for 2 public holidays. 2016: The complainant is seeking payment for 9 public holidays. 2017: The complainant is seeking payment for 3 public holidays. He asked for payment for same on 16/6/17 and got no response from the company.
Summary of Respondent’s Case:
1.Ca-12639-001; holiday entitlement. The respondent accepted that he could not demonstrate that the complainant received his full leave entitlement for 2016 but argued that as he understood it, the complainant could only go back 6 months and therefore his claim was time-barred. The respondent acknowledged that they had kept no records of leave taken. The respondent disputes that he was asked to carry over his leave in November 2015. The respondent’s HR manager states that she has no recollection of the conversation in November 2016 where she is reputed to have asked the complainant to carry over his leave until 2017. The respondent advised that the mechanism used for leave applications is to submit a request in writing to HR. An employee forum on Facebook publicises this. 2015: The respondent maintain that this claim is time-barred. 2016: There are no records 2017: He was paid two weeks annual leave in 2017.He took one week’s leave in March 2017. The complainant did not dispute same. On being requested they agreed to submit payslips after the hearing which would demonstrate holiday leave payments to the complainant.
2.CA-00012639002; public holidays. 2016-The respondent assert that he was paid his public holidays for this period. 2017. The respondent maintains that he was paid for January 1st, Easter Monday and both the May and June Bank Holidays.
Findings and Conclusions:
1.CA -00012639-001
The respondent by his own admission failed to keep any records of leave taken in the leave years in contention. Section 25 of The Act requires the respondent
”to show that the provisions of the Act are being complied with“ .
Section 25(3) states that an employer who fails to do keep records “shall be guilty of an offence”.
In circumstances where the respondent fails to keep records, the onus will lie with the employer to show that he complied with the provisions of The Act. The respondent was unable to do so in this case.
What are the allowable leave years admissible under the Act?
The complaint was submitted on 19/7/17 and is in the first half of the statutory leave year which is 1/4/17 to 31/3/18.
Section 23(1) of the Act provides that where the termination of employment occurs in the first half of the current leave year then the leave years to be considered are the current leave year (2017-2018) and the previous leave year (2016-17).
The Leave year
Both the respondent and the complainant are calculating their obligations and entitlements based on the calendar year.
The Labour Court in DWT 0963 stated that
“The only leave year which is cognisable for the purposes of determining if an employee received his or her statutory entitlements is that prescribed by the Act itself. That is to say a leave year starting on the 1st of April and ending on the 31st of March the following year. While different arrangements might be put in place for administrative purposes, in determining if a contravention of the Act occurred the Court can only have regard to the leave allocated to an employee in the statutory period”.
I must confine my examination of alleged infringements occurring only in the statutory leave years.
Leave Year 2015-2016.
Section 41(6) of The Workplace Relations Act, 2015 prohibits consideration of alleged infringements of the Organisation of Working Time Act, 1977 Act for this period. This complaint therefore fails.
Leave Year 2016-2017.
Section 19(1) of the Act provides that in a leave year where the employee works 1,365 hours, then he/she is entitled to 4 weeks paid leave payable at the normal weekly rate.Though absent from work for the period 8/3/17 to 10/4/17 due to a motorbike accident, an absence for which no medical cert was provided, he still met the threshold of hours necessary for the 4 weeks’ pay.
His pay slip for the 9/4/17 indicates a week’s holiday payment. This is payable for the 2016-17 leave year as he was off work from 8/3/17 to 10/4/17 and off salary for this period. The complainant advised that he had received payment for 3 days’ holidays in November 2016.
The pay slips submitted on request and after the adjudication hearing reveal that the complainant’s average gross, basic pay was €419 pw.
Given that the respondent was unable to prove that the respondent received his holiday payment, I find that the complainant has accrued an entitlement to 2 weeks and 2 days’ holiday pay in respect of this leave year. Based on the pay slips he worked an average 37 hours a week factoring in all hours. Hence, he is owed €1005 for the economic loss for this leave year.
Leave Year 2017-18.
The period 1//4/17-9/4/17 is not reckonable for purposes of calculating his leave entitlements for this portion of the 2017-18 leave year as he was absent due to an accident and submitted no cert in respect of this absence which spanned two leave years. Therefore, the referable period is 10/4/17- 25/6/-17. The total number of hours worked for this period which includes overtime hours =446.12. Employing section 9 (1) (b) of the Act to determine what he is owed, a third of the working week for each month in which he was employed for 117 hours will entitle him to a payment of €464. His pay slip for18/6/17 indicates a week’s holiday pay of €385. Hence, he is owed €61 as the economic loss for this period 2.CA -00012639-002; public holidays.2015-16 leave year. Section 41(6) of The Workplace Relations Act, 2015 prohibits consideration of alleged infringements of the Organisation of Working Time Act, 1977 Act for this period. This complaint therefore fails. 2016-17 leave year. Seven public holidays fell between 1/4/16 – 31/3/17. The respondent asserted that the complainant was paid for 1/1/17 as part of his annual leave entitlement. But none of the pay slips for the months January – March 2017 reveal payment for a public holiday which earns a special slot on the pay slips. Hence, I find that he is owed 7 days’ payment for the loss of public holiday payments. The sum owed is €83.80 x 7=€586. 2017-18 leave year. Three public holidays fell before his resignation on 18/6/17. The pay slip of 23/4/17 discloses that he was paid for a public holiday; Easter Monday fell on 17/4/17. May Bank Holiday: He did not work. The complainant accepted this and that he was paid his normal weekly wage. June Bank Holiday: his pay slip of 18/6/17 reveals that he was paid for a bank holiday. He was paid for the two bank holidays which fell between 1/4/17 and 25/6/17 the end of the referable period during which he worked. Therefore, his complaint under section 21 of the Act in respect of the 2017-18 year fails.
Decision:
Section 41 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. I find that the respondent has breached sections 19,20 ,21 and 25 of the Act. I have decided that the respondent should pay the complainant €1652 due to the economic loss and the sum of €600 in respect of the breaches of his rights under the Act.
Dated: 14/12/17 Workplace Relations Commission Adjudication Officer: Maire Mulcahy
Key Words: Accrued leave; leave year; termination of employment of employment.