ADJUDICATION OFFICER DECISION/RECOMMENDATION 

Adjudication Reference: ADJ-00011165

Parties:

Complaint(s):

Date of Adjudication Hearing: 25/May/2018

Workplace Relations Commission Adjudication Officer:Gerry Rooney

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint 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 as an electrician by the Respondent on a one year fixed term contract from 19th December 2016. He left his employment on the 22nd June 2017 and maintains he did not receive his annual leave entitlements. His claim before the WRC arises from unpaid annual leave on cessation of employment.

The Respondent did not attend at the hearing however I am satisfied they were properly notified by the WRC of the date time and location of the hearing.

Summary of Complainant’s Case:

The Complainant submitted that having worked up six months he did not receive his paid holiday/annual leave entitlement on his cessation of employment. He advised that when he sought this payment he was informed by the Respondent that he was entitled to 10.29 days of annual leave (including a day in lieu for a public holiday he had worked). However, the Respondent in an email to the Complainant contended that the Complainant had taken excessive breaks during his working time, and having calculated the unauthorised breaks the Respondent advised the Complainant they had amounted to 70.5 hours. Accordingly, the Complainant was informed he was only entitled to 1.48 days holiday pay (factoring in a day in lieu for a public holiday the Complainant had worked over the period). The Complainant further maintained he did not receive this payment. 

Notwithstanding, the Complainant contested the Respondent’s position, and where the Complainant’s Trade Union representative wrote to the Respondent advising the Respondent that the Complainant was entitled to his annual leave/holiday pay. The Complainant submitted that the Respondent failed to address the representations made by his Trade Union and accordingly is seeking to be paid for his annual leave entitlements, which amount to 10.48days. 

The Complainant advised that he was never advised at any stage during his employment by the supervisor on site that he was taking any unauthorised breaks.

Summary of Respondent’s Case:

The Respondent failed to attend the hearing. As stated I am satisfied the Respondent received proper notice of the hearing.

Findings and Conclusions: 

Entitlement to annual leave.

S19. (1)(b) of the Organisation of Working Time Act states an employee shall be entitled to paid annual leave equal to one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

As the Complainant has worked at least 117 hours per month on average over the period (but less than 1,365 hours over the period) he is entitled to be paid annual leave equal to one-third of a working week for each month in the leave year in which he worked. In this case the Complainant worked an average of 156 hours per month. He is therefore entitled to annual leave equal to one-third of a working week for each month, i.e 78 hours, amounting to €1,755.

Furthermore Section 23(1)(a) Of the Organisation of Working Time Act states where an employee ceases to be employed, and the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee, the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave.

I therefore find that the Complainant is entitled to his annual leave calculated for the period 19th December 2016 to 21 Jan 2017.

I further find that the Respondent’s approach to deduct payment due to alleged unauthorised breaks is unfair and was not justified.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint under Section 27 of the Organisation of Working Time Act, 1997. 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 his annual leave in accordance with S.21 of the Act on cessation of employment. 

The annual leave entitlement to be paid to the Complainant is 78 hours at €22.5 per hour, amounting to €1,7551

I also award €500 in compensation.

Dated:   18th July, 2018

Workplace Relations Commission Adjudication Officer:Gerry Rooney

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