ADJ-00006258

Complainant

Respondent

Parties

A Ground Worker

A Civil Engineering Company

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-00008539-001

2^nd December 2016

The Complainant said that having received his final payment from the Respondent on 20^th October 2016, he noted that accrued untaken holiday pay due to him on the termination of his employment was not included in the payment made to him.   On noticing this shortfall the Complainant immediately telephoned the named Director in relation to it.   The Complainant said that the Director would not acknowledge that there was a shortfall due to him and to date he has not acknowledged it.

The Complainant then went through as much information as he had in relation to his employment with the Respondent and was then in a position to point out the details of the shortfall.   He tried to ‘phone the Director on numerous occasions to arrange a meeting to discuss this but got no telephone answer.

The Complainant then sought assistance and advice from the local Citizens Information Service (CIS). At his Meeting with CIS a letter was drafted and written by the Complainant to the Respondent on 21^st November 2016.   This letter stated:

“I am writing to request outstanding annual leave entitlement of 10 days, which I believe I am entitled to under Section 19(1) of the employment act.

As you will be aware I was employed as a general operative by the above company from July 2015 until 7^th October 2016 and in that period of time I received 15 days paid annual leave.

I would be most grateful if the outstanding payment of annual leave entitlement would be forwarded on to me at the above address at your earliest convenience.   If the payment is not received in the next 10 days I will have no option but to lodge a complaint under the Organisation of Working Time Act 1997.

I trust this is in order and await your response on same.”

The Complainant said following this and on the advice of CIS a complaint was referred to the WRC.

The Complainant submitted detailed information in relation to times and hours worked, wages paid, holidays taken and holidays paid for.

In addition to annual leave entitlements the Complainant submitted that he did not receive his public holiday entitlement and he made submissions in that respect.

Based on his submissions and the facts of the case the Complainant sought a favourable decision.

The Respondent was denying the complaints and was stating that they had afforded the Complainant all of his holiday entitlements.

The Respondent said that that in fact there were discussions between the named Director and the Complainant in relation to these matters and his holiday entitlements.

The Respondent said that they operated a holiday year from 1^st January to 31^st December each year.   The Respondent said that at the end of the year 2015, they paid the Complainant all of his annual leave holiday entitlements for that year.   The Respondent said that they calculated 8% of the Complainant’s earnings for the period from 16^th July 2015 to the end of the 2015 year and they submitted that this meant that he had received his full annual leave entitlements for 2015.   In response to direct questions the Respondent said that the Complainant had 4 days annual leave and 3 public holidays leave at that time.   However they submitted that they had paid him for all annual leave accrued at that time.

The Respondent said that as agreed between the parties the Complainant received 5 days or 1 week of annual leave in February 2016. In relation to the rest of 2016 the Respondent submitted the following.

The Respondent said that the Complainant was also paid for 5 days absent in February, i.e. 15^th, 16^th, 17^th, 18^th and 22^nd February 2016.   However in response to direct questions the Respondent acknowledged that these days off were not agreed at the time or in advance as annual leave.

The Respondent said that further the Complainant was paid 3 days holidays in January 2016 and a further 4.5 days in March 2016.

The Respondent said that all of this meant that the Complainant was not due any annual leave at the time of the cessation of his employment.   They said in effect he received more annual leave holiday pay than he was actually entitled to.

In relation to the one public holiday in the relevant (6 month) period, i.e. the first Monday in August 2015, the Respondent submitted that the Complainant was paid for that day.

Based on the foregoing the Respondent submitted that the complaints were not well founded and they should be rejected.

I have carefully considered the evidence and the submissions made and I have concluded as follows.

In accordance with law annual leave holidays is periods off work with pay, which is either agreed with the parties in advance as holidays or decided by the employer and notified to the worker at least one month in advance as annual leave.   It should be noted that the 1997 Act is a health and safety measure designed to ensure that employee have suitable time of work with pay for the purposes of rest and recreation and to enable them have time off work to spend with their families.   It should be noted that it is expressly forbidden by the 1997 Act and the EU Council Directive for pay in lieu of holidays to be given except in circumstances where the employment is terminated.    

Accordingly I must decide what paid annual leave as described above the Complainant received during his 1.25 years (I year and 3 months) service with the Respondent and in that respect I note the following.

I note that in accordance with the provisions of Section 25 of the 1997 Act it is for the Respondent to keep records as defined under the 1997 Act to demonstrate compliance with the provisions of the 1997 Act and I further note that no such records as defined by the 1997 Act were produced to me at the Hearing.   I note that accordingly and as provided for in Section 25(4) of the 1997 Act that in such circumstances it is on the Respondent the onus of proving that the provisions of the Act was complied with rests -   and I find and have concluded that I am not satisfied that the Respondent has discharged that onus in the instant case.

The Complainant worked for a period of 1.25 years for the Respondent.   I note that it was accepted by both parties that this would entitle him to 5 weeks annual leave.

I find and have concluded that the Complaint’s normal working week was a 5 day week.   As stated under ‘Background’ on Page 2 of this document based on the P60 provided by the Respondent and unchallenged by the Complainant his weekly rate of pay was €597.88c   These are the figures I will be using for my calculations.

I note that it is accepted by both parties that the Complainant got 4 or 5 days annual leave time off work at the end of 2015 and this was paid leave.   In fact the Respondent states he was paid for more than 4 days annual leave, however it is an established fact that he only actually received 4 days holidays and that is all I can take into account in that respect.

It is further agreed between the parties that the Complainant also received 5 days (one week) of annual leave in February 2016

The Respondent in their letter of 30^th November 2016 refers to another week of unpaid leave in February.   However unpaid time of work cannot be considered as annual leave.   The Respondent further submits that the Complainant was absent (not on annual leave) in February 2016 for a further 5 days.   However as these days were not annual leave they cannot be offset against annual leave due to the Complainant.  

The Respondent further submitted that the Complainant received 3 days holidays in January 2016 and a further 4.5 days in March 2016; however I was presented with no evidence other than the statement in the letter of 30^th November 2016 to prove or support this assertion.  

I find and conclude that based on the foregoing the Complainant only received two weeks annual leave during his employment with the Respondent leaving a shortfall of 3 weeks annual leave due to the Complainant at the time of the termination of his employment.

Based on the above I find and conclude that the complaints under Section 27 of the Organisation of Working Time Act 1997 in relation to annual leave entitlements in accordance with the provisions of Sections 19, 20 and 23 of the 1997 are well founded and they are upheld by me.

In relation to the complaint in respect of public holiday entitlements, I note that there was only one public holiday in the relevant period (six months prior to the submission of the complaint) i.e. the first Monday in August 2016.   Based on the evidence submitted to me at the Hearing I am satisfied that the Complainant received his full and appropriate entitlement is relation to that public holiday. Accordingly, I find and conclude that the complaints in relation to public holiday entitlements are not well founded; they are rejected and are not upheld.

As stated in the ‘Background’ section of this document I cannot consider a complaint in relation to unpaid wages in any complaints or actions under the Organisation of Working of Working Time Act 1997.

Based on the above findings and conclusions the following are my decisions in relation to the complaints under the Organisation of Working Time Act 1997.

Annual Leave:   Based on the above findings and conclusions I now declare that the complaints under Section 27 of the 1997 Act in relation to annual leave entitlements in accordance with the provisions of Sections 19, 20 and 23 of the 1997 Act are well founded and they are upheld.   I note that the amount of annual leave due is 3 weeks, which based on a normal weekly rate of pay of €597.88c is €1,793.64c.

I further note that Article 11 of the Council Directive 2002/15/EC upon which the legislation is based states:   “Member States shall lay down a system for breaches of the national provisions adopted pursuant to this Directive and shall take all the measures necessary to ensure that these penalties are applied.   The penalties thus provided shall be effective, proportional and dissuasive.”

Taking into account the above, and in accordance with the provisions of Section 27(3) of the Act,         I now require the Respondent to pay the Complainant compensation in the sum of €3,000.00c within 6 weeks of the date of this decision for breaches of his rights under Section 19, 20 and 23 of the Organisation of Working Time Act 1997.

Public Holidays:   Based on the above findings and conclusions I now declare that the complaints under Sections 21, 22 and 23 of the 1997 Act are not well founded; they are rejected and are not upheld.