Complainant

Respondent

Anonymised Parties

(Hotel worker)

(Hotel)

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-00008639-001

07/12/2016

The complainant worked for the respondent for approximately 14 months from May 2015 until 24 July 2016. When he resigned he received a payslip indicating that holiday pay had been lodged to his account but this did not happen.

On cessation of his employment the complainant received a payslip indicating gross pay of €2192.16 in respect of holiday pay and that a net sum of €1856.45 had been lodged in his bank account. This money was never in fact lodged. The complainant did not have a contract of employment and his hours varied. The only information he has in relation to his holiday entitlement is the payslip which indicates that the gross sum was arrived at based on 239.58 hours and he does not dispute this calculation.

The respondent acknowledges that there is money due in respect of holiday pay but the amount due is not agreed as it is not clear when the complainant started or finished employment. The respondent’s representative is currently the General Manager of the Hotel but was not there during the period in question. It is his information that staff were told to take any due holidays before the end of the year in 2015.

The Organisation of Working Time Act, 1997 stipulates as follows;

(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.

The Act also states;

(a) to the employer taking into account—

(i) the need for the employee to reconcile work and any family responsibilities,

(ii) the opportunities for rest and recreation available to the employee,

(b) to the employer having consulted the employee or the trade union (if any) of which he or she is a member, not later than 1 month before the day on which the annual leave or, as the case may be, the portion thereof concerned is due to commence, and

(c) to the leave being granted within the leave year to which it relates or, with the consent of the employee, within the 6 months thereafter

The respondent has acknowledged that some holiday pay is due. The assertion that employees were required to take outstanding holidays before the end of 2015 is denied by the complainant and was not supported by any records at the hearing. In fact, the evidence of the complainant is that he was not allowed to take holidays coming up to Christmas as he was one of full time staff members.

The complainant was never provided with a contract of employment and worked varied hours. It is therefore unclear as to how the amount due in respect of annual leave was calculated. The respondent does not have records to indicate when the complainant commenced or ended employment and therefore, at this juncture, is unable to say with certainty how much holiday pay is due. The payslip provided, dated 24 July 2016, was prepared by the respondent at that time and the amount is not contested by the complainant. In the absence of any other records to the contrary I find that the amount due in holiday pay is €2192.16.

In accordance with s.27 of the Organisation of Working Time Act, I order the Respondent to pay the Complainant:

The sum of €2192.16 in respect of money due for holiday entitlements,

and

The sum of €550 (the equivalent of two week’s pay) in compensation

The latter part of the   award is in redress of the Complainant’s statutory rights and therefore not subject to income tax as per s. 192 A of the Taxes Consolidation Act 1997 as amended by s.7 of the Finance Act 2004.

Holiday pay