Complainant

Respondent

Anonymised Parties

A Cleaner

A Contract Cleaning Company

Representatives

Attended in Person and was not represented

The Respondent did not attend or was not represented

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-00008047-001

08/11/2016

The Complainant made a complaint to the Workplace Relations Commission pursuant section 19 of the Organisation of Working Time Act 1997 in relation to unpaid holiday entitlements. The complaint was scheduled for adjudication on 6^th July 2017. At the time the adjudication was scheduled to commence, it became apparent that there was no appearance by or on behalf of the Respondent. I waited some time to accommodate a late arrival. Having reviewed the case file, I am satisfied that the Respondent was on notice of the hearing. I proceeded with the adjudication in the absence of the Respondent.

The Complainant commenced employment as a Cleaner with the Respondent on 10^th June 2016 and his employment terminated on 24^th September 2016. His regular work pattern was a 12 hour day, two days a week, where he usually started at 8pm and finishing the following morning at 8am. The Complainant’s rate of pay was €9.75 per hour. The Complainant submits that, on occasion, he also ended up doing security work usually at the start of his shift in a pharmacy within the facility where he worked. The Complainant also claimed that he was required, from time to time, to provide cover for other employees who were on holidays or on sick leave and this included working in another building at least on one occasion.

The Complainant claims that he did not get any training for the security aspect of the job and he was worried that he might get into trouble and end up in court should he have to accost someone that he suspected had stolen something or was causing trouble, as he was unsure of the correct procedures. He said that he wished to return to college and therefore, taking everything into consideration decided to leave the job.

The Complainant claims that he did not take any annual leave and did not get any pay are lieu for untaken holiday entitlements during his period of employment with the Respondent. He claims that he asked the Respondent about his annual leave entitlement and was never given a straight answer. However, in summary, he claims that never got any annual leave or pay in lieu for untaken annual leave.

The Complainant presented documentation at the hearing in support of his claim.

The respondent did not attend the hearing nor did they furnish any submissions in defence of the claim made against it.

The Complainant commenced his employment with the respondent on the 10^th June 2016 as a cleaner and it would appear he was assigned additional duties including duties akin to a security guard within the facility each evening at the start of this shift. The Complainant expressed apprehension in this additional role and coupled with his desire to return to college, decided to resign from his employment with the respondent on 24^th September 2016. This period amounts to fifteen weeks working with the Respondent.

This claim is pursuant to the Organisation of Working Time Act and it relates to annual leave entitlement under Section 19. The Complainant claims he is due annual leave compensation of 8% for all hours worked. Section 19 of the Act provides that an employee is entitled to paid annual leave of four weeks in a leave year, or, as per Section 19(1)(c), to 8% of hours worked in a leave year but this is subject to a maximum of four working weeks.

Having regard to the evidence adduced, I am satisfied that the Complainant was normally expected to work two twelve hour shifts per week under his contract of employment. This amounts to twenty four hours per week. I am also satisfied that he was paid €9.75 per hour and that he worked a total of 439 hours during his period of employment with the Respondent during the cognisable period. Therefore, I find that the Complainant had an entitlement to €342.42 in unpaid holiday pay on the termination of his employment. I am satisfied that the Complainant was not paid this entitlement by the Respondent.

I find that the complaint made pursuant to the Organisation of Working Time Act 1997 is well founded and in accordance with the provisions of Section 27 of the Act, I require the Respondent to pay to the Complainant the amount of €342.42 (being the economic value of the shortfall claimed) plus a further €100.00 in compensation for the effects of the breach of section 19 of the Act.

Organisation of Working Time Act 1997 – Section 19 – unpaid holiday entitlements – complaint upheld