Complainant

Respondent

Anonymised Parties

A Supervisor

A Coffee Emporium

Representatives

Appeared in Person

Michael Duffy, Director.

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-00012105-001

23/06/2017

The Complainant in this case worked as a Barista/Supervisor for a period of time in 2017. Her claim before the WRC arises from unpaid annual leave on cessation of employment. The Respondent in the case disputes both the Supervisor status and the annual leave claimed as an overpayment had arisen and was recouped.

The Complainant relied on an oral submission. She gave an outline that she had commenced work with the Respondent as a counter assistant on 16 January, 2017 where she received €9.25per hour for a 40-hour week. She submitted a job profile for this role. The contract was to last for 6 months on 21 March, 2017 she was promoted to Supervisor and received €10.50 per hour. She signed a contract for this position, but did not receive a copy.

On 11 April ,2017, the Complainant gave three weeks’ notice of her intention to leave her employment and finished on May 4, 2017. The Complainant received €139.20 in holiday pay at the cessation of her employment. As she had worked a total of 629.75 hrs, she judged this to be incorrect based on the 8% calculation of hours.

She made several attempts to rectify the matter. On 20 June 2017, she was informed that this amount was correct as her promotion to supervisor had not been realised due to her pre-mature departure.

The Complainant stated that she had a recollection of being confirmed as a Supervisor on 21 March, 2017 and her rate of pay was subsequently adjusted upwards. She submitted that she had taken on the duties of a Supervisor. She stated that she had been denied her annual leave on cessation of employment.

The Complainant contended that the Respondent was aware from the January interview that she was leaving in August.

The Respondent disputed the claim. He relied on oral submission and outlined that the complainant had worked as a Barista initially and moved to Supervisor in March. This carried an expectation of staying at a minimum until August 2017.After three weeks in the role, she submitted her notice.

The Respondent contended that the claimant had not fulfilled this role and the increased payment she received amounted to an overpayment. The complainant had worked three weeks in the Supervisor role and the remaining four weeks were notice. The Respondent had a verbal understanding that the Complainant was staying on at the employment until August 2017.

The Respondent relied on an extract from an Accountant Record:

The Respondent had calculated that the complainant was due 53.74 hrs in annual leave at the rate of €9.25 per hour which amounted to €497.09. The overpayment in relation to the calculation of the Supervisor differential amounted to €357.19 over a period of 7 weeks. The Respondent had paid €139.90 in holiday pay and contended that there was nothing further owing to the complainant.

I have carefully considered the claim before me. It is important at the outset to set out the legislation governing the application of annual leave contained in Section 19 of the Act.

Entitlement to annual leave.

19

19.— (1) 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):

This case is not helped by the absence of contracts of employment. Neither is it assisted by the lack of formal records on annual leave in accordance with Section 25 of the Act. Another unusual factor involved the complainant not availing of annual leave during her employment. She certainly worked long hours and could have factored in some time for annual leave. I am satisfied that she was aware of the system in terms of making application for same.

Both parties are agreed that 53.74 hrs stands as the composite total of annual leave due to the complainant. The Complainant submits that payment for these hours has been all but denied to her save the €139.90 already paid. The Respondent stressed that the complainant was overpaid and the Respondent was entitled to recoup this payment from the annual leave due at cessation of employment.

From my perspective, I accept that the Respondent had an expectation that the complainant would work until August ,2017 and her departure placed some pressure on the business. However, I am satisfied from the evidence adduced at hearing that the complainant moved to the role of Supervisor in March 2017.This attracted a €1.25 additional hourly payment. The annual leave accumulated by the Complainant must therefore be calculated at €9.25 per hour up to March 21, 2017 and €10.50 after that. A period of notice is no justification to reduce salary.

This brings me to the contention of the overpayment .The Payment of Wages Act is the presiding Act in this regard , in particular Section 5 of the Act , which permits a mechanism to address a scenario of over payment .As I have not received a copy of a contract of employment ,I have no idea whether this Act was referenced in the contracts .At any rate ,an employee has a statutory entitlement to annual leave and the employee should have received this payment at the conclusion of her employment .By recouping €357.19 , the Respondent acted in contravention of Section 19 of the Act as any reference to overpayment should have been addressed through a different mechanism .

I am satisfied that the complainant worked in both roles in her position and her annual leave was part paid only. She is entitled to succeed in her claim. The claim is well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 27 of the Organisation of Working Time Act, 1997 requires me to decide in accordance with redress options under the Act.

I have found that the claim is well founded and I order the Respondent to pay the complainant her annual leave in accordance with S.21 of the Act on cessation of employment.

1 Annual Leave 16 January 2017- 20 March 2017 at €9.25 per hour

2 Annual Leave 21 March 2017 – 4 May 2017 at €10.50 per hour

The amount €139.90 has already been paid and should be subtracted from the total.

I also award €500 in compensation.

I order the Respondent to commence a record of annual leave from the date of this decision in accordance with Section 25 of the Act.

Annual Leave.