ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002255

Complaint for Resolution:

Date of Adjudication Hearing: 10/01/2017

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

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

The Complainant has been employed since 9^th February 2008 and following a Transfer of Undertaking in November 2014 he transferred to the Respondent Company. He is employed as a Security Officer, is paid €10.75 an hour and worked 39 hours a week. He referred a complaint to the Workplace Relations Commission on 4^th March 2016 alleging that the Respondent had not paid him accrued annual leave of 20 days due following the transfer.

Summary of Complainant’s Position.

The Complainant stated that prior to the TUPE he met with a named Manager of the Respondent and he stated that he was given a verbal assurance that his terms and conditions would transfer, this to include his accrued annual leave of 44 days. He had a meeting with the Manager in January 2015 to discuss the matter and the Manager undertook to write to the Transferor to seek payment of accrued annual leave. He stated he had been paid for 24 days and he is claiming the balance of 20 days owed to him.

Summary of Respondent’s Position.

The Respondent stated that the Complainant has been paid a total of 328 hours from the date of TUPE in November 2014 to December 2015. In 2014/2015 the Complainant carried forward a balance from 2014 to 2015 of 176 hours (44 hours x 4 weeks). He is also due 176 hours for 2015. This is a total of 352 hours. The Complainant has been paid 328 hours and he carried forward 24 hours into 2016. The Complainant was paid 45 hours on 25^th January 2015 – 45 hours on 8^th February 2015 – 54 hours on 31^st May 2015 – 40 hours on 14^th June 2016 – 30 hours on 18^th October 2015 – 96 hours on 1^st November 2015 and 18 hours on 15^th November 2015. Payslips provided.

On the basis of the evidence and written submissions from both Parties, the evidence shows that the Complainant received his annual leave entitlements for both the 2014 and the 2015 annual leave years. The issue relates to accrued annual leave not paid to the Complainant by the Transferor for years other than the 2014 annual leave year. This is the responsibility of the Transferor. The case law of TUPE has established that the Transferee has a liability in respect of the annual leave accrued in the year of the transfer but not for annual leave accrued for any annual leave due prior to the year of the transfer.

In accordance with Section 41 (5) of the Workplace Relations Act, 2015 declare this complaint is not well founded as the Respondent is not liable for annual leave accrued and not paid prior to the annual leave due in the year of the Transfer.

Rosaleen Glackin

Adjudication Officer

Date: 20 March 2017