ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00010031

Parties:

Complaint(s):

Date of Adjudication Hearing: 23/11/2017

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

Summary of Complainant’s Case:

The Complainant was employed by the Respondent from December 2016 to June 2017. He was employed on a part-time basis as Door Security Staff.

He worked a minimum of 10 hours per week and his normal working days were Thursday to Sunday, however given the nature of the work, he would also be required to work public holidays if the club was open. The working hours were from 10.30pm to 3am.

His hourly rate was €14 per hour.

Our claim for compensation is being made under the Organisation off Working Time Act, 1997. The employer has failed in his obligation to give our member his entitlements under annual leave and public holiday.   Since commencing employment our member has never received his annual leave or public holiday entitlements. He resigned his position in June 2017 and is therefore seeking payment for any outstanding annual leave and public holidays due for the previous 6 months of his employment with the Respondent. The Complainant terminated his employment by way of letter and gave the appropriate notice.

While our member terminated his contract to seek other opportunities, he was left with no option but to do so given the ongoing workplace issues with the Respondent. All SIPTU members experienced serious difficulties in getting paid on a weekly basis and wages were constantly late, sometimes in excess of a week.

Section 19 (1) of the Organisation of Working Time Act provides for the methods to calculate annual leave entitlement. As our member was a part-time worker he entitlement is based on 8% of the total hours worked.

When the Complainant terminated his contract, he had accumulated 17.04 hours annual leave entitlements

17.04 hrs annual leave @ 14 per hour €236.56 gross

S.I. No. 475/1997 - Organisation of Working Time (Determination of Pay For Holidays) Regulations, 1997 provides for the payment of public holidays. Before his resignation the Complainant did not receive any payment for the 5 public holidays, New Year’s Day, St Patrick’s Day, Easter Monday, May Day and June public holiday

5Public Holidays there each calculated at a 1/5 of your normal working week totalling €168. As our members hours vary, and as he does not have access to his pay slips the relevant rate in respect of the public holidays has been calculated to the sum of one fifth of his normal working hours.

The total amount owed is €406.56 gross.

Given that the Organisation of Working Time Act derives from a European Directive we would contend that the failure of the employer to meet its obligations under the act renders them liable to compensate the Complainant for those breaches. The requirement for the Adjudication Service to apply compensation is set out in the European Court of Justice decision Von Colson v Land Nordrhein-Westfalan where the ECJ held

“It nevertheless requires that if a member state chooses to penalise breaches of that prohibition by the award of compensation. Then in order to ensure that it is effective and has a deterrent effect, that compensation must in any event be adequate in relation to the damage sustained and must therefore amount to more than purely nominal compensation”

The former Rights Commissioner Service, the Labour Court and the Adjudication Service have relied on the principles established under Von Colson to apply compensation to workers effected by breaches of the Organisation of Working Time Act. In support of this contention we would cite Labour Court Decision DWT13146, R-147572-WT-14 and ADJ-00007042.

Adjudicator based on the foregoing we would request you issue a decision requiring the employer to pay our members outstanding annual leave and public holiday entitlements and in addition award our member compensation for the breach of his entitlements as an EU citizen.

Summary of Respondent’s Case:

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Based on the evidence presented the Complainant is entitled to the following;

Under reference number CA-00013107 -001 I award the complainant 236.56 Euro for non payment of annual leave.

Under reference number CA-00013107 -002 I award the complainant 168 Euro for non payment of public holiday pay. In addition under the Van Colson decision for failure by an Employer to meet their obligations I award the Complainant a compensation amount of 200 Euros.

Dated: 5th April 2018  

Workplace Relations Commission Adjudication Officer: Peter O'Brien

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