ADJUDICATION OFFICER DECISIONS

Adjudication Reference: ADJ-00005869

Parties:

Complaints:

Date of Adjudication Hearing: 24th October 2017

Workplace Relations Commission Adjudication Officer: Seán Reilly

Procedure:

In accordance with Section 41 of the Workplace Relations Act 2015 and Section 27 of the Organisation of Working Act 1997 and following the referral of the complaint 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 complaint.

Background:

The Complainant was employed by the Respondent from 5th August 2015 to 31st August 2016 and her weekly rate of pay was €366.00c.  

The Complainant was submitting that the Respondent had failed to provide her with her Annual Leave and Public Holiday entitlements in accordance with the provisions of the 1997 Act.

Preliminary Issue:

The complaint was presented to the WRC on 9th November 2016.     In accordance with the provisions of Section 27(4) of the Organisation of Working Time Act 1997 and Section 41(6) of the Workplace Relations Act 2015 this would make the relevant period from 1st April 2015 to 31st August 2016 (i.e. the entire period of employment) for annual leave, but only from 9th May 2016 to 31st August 2017 in the case of public holidays.   However, the Complainant made submissions that there was ‘reasonable cause’ that justified extending that period by a further 6 months in accordance with the provisions of Section 41(8) of the Workplace Relations Act 2015.

The Complainant submitted that she was trying to sort out the matter of her holiday entitlements with the Respondent and that it was only when it became obvious that this was not going to happen that it became appropriate for her to refer her complaints under the Act.   She submitted that this constituted ‘reasonable cause’ that justified extending the normal 6 month relevant period.

Summary of Complainant’s Case:

The Complainant said that the Respondent had failed and refused to afford her annual leave or public holiday entitlements in accordance with the provisions of the 1997 Act.

The Complainant made the following submissions in relation to the two complaints under the Act:

Annual Leave:

The Complainant said that the relevant period in her case was just over one year but she received no annual leave entitlement for that period and she submitted that she was entitled to 4 weeks’ annual leave in that period, but that she did not receive any annual leave entitlements for the period.

Public Holidays:

The Complainant said there were 8 public holidays in the relevant period, but that however she only received entitlements in relation to 2 of them, i.e. Christmas Day and St. Stephen’s Day leaving a shortfall of 6 public holidays due to her.

Based on the foregoing the Complainant sought favourable decisions.

Summary of Respondent’s Case:

The Respondent was not present or represented and they sent no submissions.

Findings, Conclusions and Decisions:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 27 of the Organisation of Working Time Act 1997 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions of the same Section of the 1997 Act.

The Respondent was not present or represented at the Hearing, accordingly I only have the submissions and evidence of the Complainant to rely upon in these matters.

Preliminary Issue:

I am satisfied that there was ‘reasonable cause’ that caused the delay in submitting the complaints at an earlier stage and that justifies extending the normal 6 month relevant period under consideration for the purposes of the complaints in relation to public holidays by a further 6 months.   Accordingly, the relevant period under consideration for the purposes of the complaints in relation to public holidays is from 9th November 2015.

Substantitive Issues: 

Based on the uncontested evidence of the Complainant I have concluded and I find that the complaints under Section 27 of the Organisation of Working Time Act 1997 in relation to annual leave and public holiday entitlements under the Act are well founded and they are upheld by me.

Based on the above findings the following are my decisions in relation to the two specific complaints under the 1997 Act:

CA-00008073-001: Annual Leave Entitlements:

Based on the uncontested evidence of the Complainant and the above findings I declare that the complaint under Section 27 of the Organisation of Working Time 1997 Act in relation to annual leave entitlements in accordance with sections 19 and 20 of the Organisation of Working Time 1997 are well founded and they are upheld.

I note that the amount of annual leave due to the Complainant is 4 weeks, which based on her weekly pay rate of €366.00c is equivalent to €1,464.00c.

I further note that Article 11 of the Council Directive 2002/15/EC on which the Act is based states that “Member states shall lay down a system of penalties for breaches of the national provision adopted pursuant to this Directive and shall take all measures necessary to ensure that these penalties are applied.   The penalties thus provided shall be effective proportional and dissuasive.”

Taking into account the above and in accordance with the provisions of Section 27(3) of the Organisation of Working Time Act 1997 I now require the Respondent to pay the Complainant compensation in the sum of €2,950.00c within 6 weeks of the date of this decision for breaches of her rights under sections 19 and 20 of the Organisation of Working Time Act 1997 in relation to annual leave entitlements.

CA-00008073-002: Public Holiday Entitlements:

Based on the uncontested evidence of the Complainant and the above findings I declare that the complaint under Section 27 of the Organisation of Working Time Act 1997 in relation to public holidays under sections 21 and 22 of the Organisation of Working Time Act 1997 are well founded and they are upheld.

I note that the number of public holidays involved in the relevant period is 6 public holidays which based on the Complainant’s weekly pay rate of €366.00c is equivalent to €439.20c.

I again note the quote above from Article 11 of the Council Directive 2002/15/EC upon which the Act is based.

Taking into account the above and in accordance with the provisions of Section 27(3) of the Organisation of Working Time Act 1997, I now require the Respondent to pay the Complainant compensation in the sum of €900.00c within 6 weeks of the date of this decision for breaches of her rights under sections 21 and 22 of the Organisation of Working Time Act 1997 in relation to public holiday entitlements.

The total amount of the awards to the Complainant under the 1997 Act is €3,850.00c.

Dated: 19/01/18

Workplace Relations Commission Adjudication Officer:  Seán Reilly

Key Words: Annual Leave and Public Holiday entitlements