ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00006818

	Complainant	Respondent
Anonymised Parties	A Restaurant Worker	A Restaurant

Complaints:

Act	Complaint 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-00005269-001	17/06/2016

Date of Adjudication Hearing: 07/04/2017

Workplace Relations Commission Adjudication Officer: Louise Boyle

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The complainant was employed as a restaurant worker at the restaurant from approx. 28th September 2015 until 30th March 2016. She claimed her employer did not pay her the annual leave she was owed when she left the organisation.

Summary of Complainant’s Case:

The complainant maintained that she was owed holidays from her time spent working with the respondent. She maintained that he refused to pay same despite her and her father contacting him on numerous occasions.

Summary of Respondent’s Case:

The respondent was happy to proceed unrepresented. The respondent maintained that the complainant was rostered to work over Easter 2016 but said she was unavailable. He was unable to open the upstairs of the restaurant as she let him down and he had nobody else to cover for her. As a result there was a loss to the business from the closure of this part of the business to the value of approximately €600-€1,000. This had to be recouped thus he deducted it from her holidays when she left the organisation. He said it was not the first occasion that she had let him down and that at Christmas she failed to turn up for work and that as a result he had to travel back from his holidays to cover her shift. On another occasion she broke champagne flutes through her own negligence and he had deducted the costs of them from her wages. He confirmed that she had never been disciplined nor had she received a contract of employment.

He expressed annoyance that she has been sending texts and messages on Facebook in relation to this complaint and he wanted confirmation that she would cease contacting him.

Findings and Conclusions:

It was evident during the hearing that the respondent felt badly let down by the complainant on a number of occasions. She disputed his version of events. It was not disputed, though, that as the respondent felt let down by the complainant around the Easter period, albeit he never carried out an investigation of events, he decided to make her pay for what he regarded as the loss of business when she left.

Section 19 of the Act details that an employee should be entitled to annual leave equal to

( 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):

Nowhere is it detailed in the legislation that if an employer feels let down by their employee that they can withhold the employee’s annual leave entitlement nor was there any contract of employment issued that might have provided for same, nor did the respondent carry out any investigation.

The complaint was received by on 17 June 2016 and as has been determined by the Labour Court in Tapas Street Ltd V Joseph Mitchell DWT176 “the cognisable period covered by the claim is the six-month period” which in this instant case is from 18^th December 2015 – 17^th June 2016. As the Complainant worked approximately 253.9 hours at the rate of €9.15 she accrued a statutory entitlement of 20.3 hours annual leave. Accordingly, the complainant’s claim is well founded and I order the Respondent to pay to the Complainant compensation to the sum of €185.00. Payment to be made within 42 days of this decision.

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 complainant’s claim is well founded and I order the Respondent to pay to the Complainant compensation to the sum of €185.00. Payment to be made within 42 days of this decision.

Dated: 19^th June 2017

Workplace Relations Commission Adjudication Officer: Louise Boyle

Key Words:

Annual leave, refusal to pay,