Complainant

Respondent

Anonymised Parties

A Consultant

A Training Company

Representatives

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-00019008-001

08/05/2018

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00019008-002

08/05/2018

The complaint relates to a claim by the complainant that on the termination of his employment he was not paid 4.33 days holiday entitlement as owed to him.

The respondent said that the complainant was owed a number of holidays, but the complainant had used at least two of those days “travelling around the country” before his employment terminated and as he failed to return company equipment and documentation, it was waiting for that to be returned first.

The complainant claims that he commenced employment with the respondent on 1 June 2017 to work as a consultant. He said that he outlined a number of things that the respondent was failing on and accordingly he was under-utilised in his role, and his calendar was not as fully engaged as he expected, or it should have been.

He claims that he was doing his job well and getting great feedback from clients. However, the organisation was not prospering as it should have been and growing accordingly.

He claims that on 27 March 2018 he got a phone call which lasted 3 minutes from the CEO to say that things were not working out and that his job was effectively gone.

He claims that on the termination of his employment he was not paid 4.33 days holidays that was owed to him. He said that he had received written confirmation from the respondent’s CEO confirming his holiday entitlement. He said that he has made repeated requests for this to be paid but to no avail.

He said that as per his contract his holiday entitlement is 20 days and based on 11 months this pro-rata entitlement is 18.33 days. He said he had taken 14 days and therefore is entitled to 4.33 days to be paid on the cession of his employment, which was not paid.

He provided in evidence an email from the CEO entitled ‘holiday entitlement’ to support his claim. He claims that he did not take any holidays after this email was sent. He provided evidence of his final payslip of 28 April 2016 with his basic salary paid and no holiday hours.

The respondent claims that it is in business for 16 years and it provides high valued training to many sectors.

It said it operates a typical training model for the market it operates in, where it normally employs a high number of trainers on a daily fee arrangement. It decided in 2017 to slightly change its work model and it employed the complainant from 1 June 2017 to work as a consultant trainer with responsibilities to help grow the business.

It claims that the complainant’s performance on the additional functions outside of delivering training courses was not satisfactory. It felt that his role was not working out and after much consultation with the complainant it decided to end the work contract as proposed. It invited him to work with it on a daily fee arrangement plus loyalty bonuses similar to that of its other trainers.

It claims that the complainant did not agree to take up that option and the contract was thus terminated. However, prior to him leaving it claims that it felt that he was away from his work on a number of days and therefore it felt he was not entitled to all his 4.33 days as was the agreed holiday entitlements at that time.

The respondent said that it had on numerous occasions asked the complainant to return documents and equipment belonging to it, but he has failed to return them. It said that it held back payment until its property was returned.  

CA-00019008-001 - Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

Section 19 of the Organisation of Working Time Act 1997 provides for employees’ entitlements to annual leave. It states

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):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.

(2) A day which would be regarded as a day of annual leave shall, if the employee concerned is ill on that day and furnishes to his or her employer a certificate of a registered medical practitioner in respect of his or her illness, not be regarded, for the purposes of this Act, as a day of annual leave.

(3) The annual leave of an employee who works 8 or more months in a leave year shall, subject to the provisions of any employment regulation order, registered employment agreement, collective agreement or any agreement between the employee and his or her employer, include an unbroken period of 2 weeks.

(4) Notwithstanding subsection (2) or any other provision of this Act but without prejudice to the employee's entitlements under subsection (1), the reference in subsection (3) to an unbroken period of 2 weeks includes a reference to such a period that includes one or more public holidays or days on which the employee concerned is ill.

(5) An employee shall, for the purposes of subsection (1), be regarded as having worked on a day of annual leave the hours he or she would have worked on that day had it not been a day of annual leave.

(6) References in this section to a working week shall be construed as references to the number of days that the employee concerned usually works in a week.

I note that the Organisation of Working Time (Records)(Prescribed Form and Exemptions) Regulations 2001 requires employers to keep detailed records of start and finishing times, hours worked each day and each week and leave granted to employees. This Regulation is part of the Organisation of Working Time Act 1997. Section 25(4) of the Act states the onus of proving, in proceedings before an Adjudication Officer or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.

I am satisfied that the parties agreed as of 5 April 2018 that the complainant was due 4.33 holidays that were outstanding. The complainant said that he did not take any further holidays until his employment terminated. The respondent said that the CEO recalls telephone conversations with the complainant on two occasions when the complainant was travelling around the country and it was taken had those days were ‘holidays’. There is a question then for the respondent as to whether the complainant worked on certain days or not. The onus rest with the respondent. It is up to the employer to produce records to support that all the actual holiday entitlement was given. Based on the evidence provided, and in consideration of all the matters, I am satisfied that the complainant is still entitled to 4.33 holidays outstanding.

In accordance with Section 27 of the Act, I find the complaint to be well founded and I require the respondent to pay to the complainant the outstanding 4.33 holidays owed to him, which amounts to actual loss. I also require the respondent to pay to the complainant a further €200 in respect of the contravention of the Act.

CA-00019008-002 - Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

In essence, the complainant has asked that he be paid what he believes is owed to him namely, 4.33 holiday pay, and that is what he is looking for to resolve this dispute with the respondent.

The respondent said that there are a number of its items in the complainant’s possession and that it wants those items returned. Those include namely two laptops and various notes and documents relating to two named clients the complainant was working on.

I note that there is a standoff between the parties. Therefore, in an effort to resolve the abovementioned dispute, I recommend the following.

The respondent should pay the complainant the outstanding 4.33 holidays entitlement plus compensation as outlined in complaint reference CA-00019008-001 above, and in return within two weeks of receipt of that said payment, the complainant shall return the two laptops and the various notes and documentation in relation to the two named clients that he holds to the respondent’s Office.

CA-00019008-001 - Organisation of Working Time Act 1997

In accordance with Section 27 of the Act, I find the complaint to be well founded and I require the respondent to pay to the complainant the outstanding 4.33 holiday pay, plus an additional €200 in compensation.

CA-00019008-002 - Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts.

I recommend that the respondent should pay the complainant the outstanding 4.33 holiday entitlement plus €200 as outlined in complaint reference CA-00019008-001 above, and in return within two weeks of receipt of that payment, the complainant shall return the two laptops and the various notes and documentation in relating to the two named clients to the respondent’s Office.

Organisation of Working Time - Industrial Relations Acts – Annual leave outstanding – complaint well-founded.