ADJ-00009723

Complainant

Respondent

Parties

Taxi Driver

Taxi Operator

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-00012742-001

24/07/2017

The complainant was a taxi driver and worked on a part-time basis of 16 hours per week.   The complainant had commenced employment with the business in October 2013 and the respondent had taken over the business on 1 February 2016. The respondent’s employment terminated on 19 May 2017. The complaint is in relation to a claim by the respondent that he was not paid holiday pay.

The complainant was never paid holiday pay during his period of employment.

The complainant had the benefit of extra payments over and above his net pay.

The respondent argued that the complainant’s employment with him commenced in February 2016 when he, the respondent, took over the business. The respondent in evidence agreed that when he took over the business it included taking over the office, cars and staff. It is clear therefore that the Transfer of Undertakings Regulations are applicable in these circumstances and that the complainant’s employment transferred on foot of same.

The complainant stated that he had no written contract and that he seldom received pay slips. He worked 16 hours per week at €10.00 per hour.   He had never received paid holidays.   The complainant said that the agreement with the respondent provided that he would withhold €160.00 from his takings each week and that the respondent would calculate tax liabilities and pay same. The respondent denied that such an agreement existed and stated that he had calculated the net pay that the complainant was due as €148.58. A copy payslip dated 30 December 2016 was produced as proof in this regard. Despite this the complainant had continued to take €160.00 from the takings each week.   As far as the respondent was concerned therefore, the complainant has had his holiday pay.

I note that a P60 Form relating to the complainant was completed by the respondent in respect of the tax year ending on 31 December 2016 which shows deductions for PAYE tax and USC. The pay slip dated 30 December 2016 contains similar information confirming the amounts set out on the P60 Form. No record was produced of any communication between the respondent and the complainant regarding the latter retaining excessive weekly amounts from the takings.  

Section 19(1) of the Organisation of Working Time Act, 1997, states:

Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “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.

I am satisfied on the basis of the evidence before me that the complainant did not receive any entitlement in this regard. It must also be pointed out that the right to annual leave is imposed for health and safety reasons and the right to leave is a fundamental social right in European Law. It cannot be substituted by a payment in lieu.

The complaint was lodged on 24 July 2017. Applying Section 41(6) of the Workplace Relations Act, 2015, I can consider breaches that have occurred in the six months prior to that date. The annual leave year for the purposes of legislation commences on the 1 April of each year. For leave year 2017/18 therefore it runs from 1 April 2017 to 19 May 2017.   This equates to 8.96 hours’ payment for that year. The leave year for 2016/17 ended on 31 March 2017. At the close of that leave year the complainant was due his full annual leave entitlement for 2016/17.

The Labour Court in Determination No. DWT0342 stated:

Where a claimant has not received his or her statutory period of leave a claim cannot be made nor can an award be formulated as being for payment in lieu of holidays…… In such cases the proper award should be in the form of compensation for loss of annual leave. Such an award need not be limited to the value of the lost holidays.

In this case I am satisfied that the appropriate form of redress is an award of compensation.

Complaint No. CA-00012742-001:

I find this complaint to be well founded and I require the respondent to pay the complainant the sum of €900.00 as compensation in this regard.