ADJUDICATION OFFICER DECISION

 Adjudication Reference: ADJ-00007786

Parties:

 Anonymised Parties Butcher Owner of butcher’s shop  

Complaint(s): Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00010456-001 28/03/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00010456-003 28/03/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00010576-001 31/03/2017  

Date of Adjudication Hearing: 02/10/2017

Workplace Relations Commission Adjudication Officer: Maire Mulcahy

Procedure:

In accordance with Section 41 of the Workplace Relations Act, Section 8 of the Unfair Dismissals Acts, 1977-2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints  

Background:

Preliminary Matters. The complainant withdrew claim CA-00010456 lodged under the Unfair Dismissals Acts 1977-2015. The complainant’s legal representative asked that the respondent’s name be corrected. The correct name is included in this decision. The respondent was notified of hearing. The respondent director advised by letter dated 5/9/17 that he would not attend scheduled adjudication hearing on 2/10/17, and that he had ceased trading on in January 2017. The notice of the hearing was sent to the respondent. It contains the current trading name at the same address. Background1.CA -00010576-001. The complainant commenced full time work as a butcher with the respondent on or about the 1/11/2006. The respondent notified him by letter dated 15/12/16 that his employment was being terminated. He did not receive any holiday entitlement for the 2016 year. Complainant advised that the leave year in his employment is the calendar year. His average gross basic weekly salary is €918 pw. He claimed that he worked in excess of 48 hours per week. The respondent failed to pay him for his leave entitlement for 2016. He lodged his complaint 31/3/17. The complainant is seeking payment in relation to accrued annual leave on termination of his employment. He is seeking payment in accordance with the provisions of Section 27(3) of The Organisation of Working Time Act,1977. 2.CA-00010456-003 This complaint was submitted to the WRC on 31/3/17. The complainant advises that the respondent failed to provide him with a signed and written statement of his terms of employment in breach of Section 3 of The Terms of Employment Information Act, 1994.  

Summary of Complainant’s Case:

1.CA- 00010456-001. This complaint is withdrawn 2.CA -00010576-001. Written and oral evidence was supplied at the hearing. The complainant worked with the respondent since November 2006. He went on sick leave following a workplace injury on 17/8/216.The complainant advised that he asked the respondent for payment in lieu of annual leave late August / early September and the respondent’s reported response   “ are you having a laugh”? The complainant advised that he could not take leave at an earlier point due to staff shortages. The only pay slips which he received from the respondent were those (2) received in October 2013 which he needed for a mortgage application. They disclose a gross salary of €918 per week. The complainant advises that his salary remained the same since then. His bank statements for the period December February – September 2016 reveal a net weekly wage payment of €650 pw. He was notified of his dismissal in a letter dated 15/8/16. His statutory leave is 20 days per annum. He lodged his complaint on 31/3/17. Taking account of notice due, his termination date is 14/1/17. 2.CA-00010456-003- This complaint was submitted on the 31/3/17. The complainant advises that the respondent failed to provide him with a signed and written statement of his terms of employment in breach of Section 3 of The Terms of Employment Information Act, 1994.      

Summary of Respondent’s Case:

The respondent advised by way of letter dated that he would not be in attendance at the hearing into any of the 3 complaints originally listed for the hearing on the 2/10/17.  

Findings and Conclusions:

1.CA—00010576 Based on the uncontested written and oral evidence,the claimant meets the threshold of 1365 hours per year which is required so as to benefit from the 4 weeks allowable under Section 19 (1) of The Act. The claimant is entitled to 4 weeks annual leave for the leave year 1/1/16 – 31/12/16. However, the Labour Court determined that “The only leave year which is cognisable for the purpose of determining if an employee received his or her statutory entitlement is that prescribed by the Act itself, that is to say a year starting on 1st April and ending on 31st March the following year. While different arrangements may be put in place for administrative purposes, in determining if a contravention of the Act occurred the Court can only have regard to the leave allocated to an employee in the statutory period. Consequently the Claimant can only succeed in the present claim if it is shown that in the period 1st April 2007 to 31st march 2008 he was allocated less than 20 days annual leave.” DWT 0963. Hence the referable period in the within claim is 1/4/16-14/1/17. His notice expired on 14/1/17. He ceased working with the respondent on 17/8/16 due to illness. The period 17/8/16-14/1/17 is reckonable for the accrual of holiday pay by virtue of Section 8(1) of The Workplace Relations Act, which incorporated the decision of the Court Of Justice of The European Union case C-350/06 Schultz v Hoff. He received no annual leave. Having worked 1365 hours, he meets the provisions of section 19(1) of The Act. He is entitled to payment for 4 working weeks. I declare that the complaint is well founded. 2.CA-00010456-003. This complaint was submitted on 31/3/17 The complainant advises that the respondent failed to provide him with a signed and written statement of his terms of employment in breach of Section 3 of The Terms of Employment Information Act, 1994.    

Decisions:

  1.CA -00010576-001. Section 41 of the Workplace Relations Act, requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under schedule 6 of that Act is well founded. I have decided that the respondent has breached section 19 (1) of the Organisation of Working Time Act, 1997. I decide that the employer should pay the complainant the sum of €3672 (€918x 4 weeks pay) in respect of non- payment of holiday and, in addition, the sum of €1000 as compensation in respect of the infringement of the Act. 2.CA-00010456-003. Section 41(4) of the Workplace Relations Act, 2015 requires that I make a decision in relation to this complaint and in accordance with the relevant redress provisions under schedule 6 of that Act. Section 7 of the Terms of Employment and (Information Act), 1994 requires me to make a decision in this case. Based on the uncontested evidence, I find that the respondent’s failure to provide him with a signed and written statement of his terms of employment to be in breach of Section 3 of The Terms of Employment (Information) Act, 1994. I order the respondent to pay €1836 ( the equivalent of two weeks salary) to the claimant    

Dated:   13/12/2017

Workplace Relations Commission Adjudication Officer: Maire Mulcahy

Key Words: Non -payment of holiday pay, leave year, employment ended, referable period