ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00005582

Complaints for Resolution:

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, and 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

The Complainant has been employed with the Respondent Company since 17^th November 2006. He is employed as a Security Officer, is paid €10.75 an hour and works on average 42 hours a week.

The Complainant referred a complaint to the Workplace Relations Commission on 26^th February 2016 alleging the Respondent had breached the Payment of Wages Act, 1991 and had breached the Organisation of Working Time Act, 1997.

These complaints under ADJ 5582, were submitted to the WRC on 20th October 2016. Other complaints were lodged on 26^th February 2016 under ADJ 2154 Both sets of complaints were heard by agreement of the Parties on 14^th December 2016.

The period covered by the second complaint lodged on 20^th October 2016 is from 21^st April 2016 to 20^th October 2016.

Summary of Complainant’s Position

Organisation of Working Time Act, 1997.CA-00007742-002

The Complainant stated that he was on annual leave from 23^rd May 2016 to 29^th May 2016 and he was not paid his annual leave in advance. He also stated that he was on annual leave from 12^th September 2016 to 25^th September 2016 and again he was not paid his annual leave in advance. This is in breach of Section 20(2) of the Act.

CA-00002887-001.

Wages received for his annual leave from 23^rd May 2016 to 29^th May 2016 and again from 12^th September 2016 to 25^th September 2016 is incorrect. He stated that the unsocial payment and the Sunday Premium payments were not included in the calculation of payment for his annual leave. He stated he sent an email to the Respondent and received a response “This is custom and Practice throughout the Company”.

Summary of Respondent’s Position.

Organisation of Working Time Act, 1997

CA-00007442-002

The Respondent confirmed at the Hearing that annual leave had not been paid in advance.

CA-00007442--001

The Respondent stated that payment for annual leave does not include payment of the Unsocial Payment of €16.80 a day or the payment of the Sunday Premium in the calculation of pay for annual leave.

Organisation of Working Time Act, 1997

CA-00007442-002

This issue was the subject of a separate complaint to the WRC on 26^th January 2015. The Hearing in relation to that complaint was heard on 15^th June 2015 and a Decision issued on 12^th February 2016. The Rights Commissioner/ Adjudication Officer found against the Respondent and found that the Respondent had breached Section 20 of the Act.

Section 20(2) of the Act provides that “The pay in respect of an employee’s annual leave shall-(a) be paid to the employee in advance of his or her taking the leave”.

I find that the Respondent has breached Section 20 of the Act

CA-00007442-001

The calculation of Pay for annual leave is determined by S.I. 475/1997 at Section 3 (1) where it provides as follows: The normal weekly rate of an employee’s pay, for the purposes of Sections 20 and 23 of the Act (hereafter in this Regulation referred to as the “relevant sections”) shall be determined in accordance with the following provisions of the Regulation. (2) If the employee concerned pay is calculated wholly by reference to a time rate or a fixed rate or salary or any other rate that does not vary in relation to the work done by him or her, the normal weekly rate of his or her pay, for the purposes of the relevant sections, shall be the sum (including any bonus or allowance the amount of which does not vary in relation to the work done by the employee but excluding any pay for overtime) that is paid in respect of the normal weekly working hours last worked by the employee before the annual leave….commences….

The evidence from both Parties was that the Complainant was paid an unsocial payment of €16.80 per day and he was also paid a Sunday Premium of €41.28 per Sunday worked. The Parties also confirmed that the Complainant was not paid the Unsocial Payment or the Sunday Premium when he was paid his wages in respect of his annual leave taken from 23^rd May 2016 to 29^th May 2016 and again from 12^th September 2016 to 25^th September 2016

I find that the Respondent has breached Section20 and S.I. 475/1997 in the calculation of pay for Annual Leave.

Decisions

Organisation of Working Time Act, 1997 CA-00007442-002

In accordance with Section 41 (5) of the Workplace Relations Act, 2015 and in view of my findings above I declare this complaint is well founded. The Respondent has breached Section 20 of the OWTA, 1997 in that the Complainant was not paid for his annual leave in advance of taking his annual leave

I direct the Respondent to pay the Complainant compensation of €200.00 for breach of Section 20 of the Act

Organisation of Working Time Act, 1997 CA-00007442-001.

I direct the Respondent to pay the Complainant –

€205.23 for annual leave taken between 23rd May 2016 to 29th May 2016 and

€158.88 in respect of annual leave taken from 12th September 2016 to 25th September 2016

This, subject to any lawful deduction, should be paid to the Complainant within 42 days of the date of this Decision.

I direct the Respondent to pay the Complainant compensation of €200.00 for breach of Section 20 of the Act within 42 days of the date of this Decision.

Date:__27^th February 2017____________________________.