Complainant

Respondent

Anonymised Parties

Ms. X

A restaurant owner

Representatives

Self

Self

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-00015191-001

20/10/2017

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

CA-00015191-002

20/10/2017

The Complainant worked as a barista and commenced employment with the Respondent on 22/11/2016, she left this employment on 03/09/2017.During her employment she was paid at the rate of €9.25 per hour and this was increased for a short period to €9.50 per hour.

The Complainant alleges that she was left short of pay in lieu of holiday entitlement when she left her employment and, she was rostered to work hours that would be in breach of section 11 of the Organisation of Working Time Act 1997, less than 11 hours between ending work one day and starting work the following day.

Complaint CA – 00015191 – 001 - Annual leave entitlement.

The Complainant alleges that having worked for more than 1365 hours plus the fact that she had not used all her annual leave she has an entitlement to all her annual leave. When she left employment, she requested her employer to send the balance of her annual leave pay which he refused.

Complaint CA – 00015191 – 002 – Section 11 – Organisation of Working Time Act.

The Complainant alleges that several times she was put on a working schedule without proper 11 hours between two shifts. Sometimes she did not get a day off in several weeks. The Complainant alleges that she can produce documentation to this effect.

Complaint CA – 00015191 – 001 - Annual leave entitlement.

In relation to holiday pay the Representative of the Respondent did admit that an amount of holiday pay was withheld as a disciplinary measure.

Complaint CA – 00015191 – 002 – Section 11 – Organisation of Working Time Act.

The Respondent did admit that this would happen very rarely and only in cases of employee absenteeism. When asked to quantify this the Respondent replied two or three times during the course of the Complainant’s employment with the Respondent.

Complaint CA – 00015191 – 001 - Annual leave entitlement.

Annual Leave entitlement is covered in section 19 of the Organisation of Working Time Act.

“An employee is entitled to 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 hours he or she works in a leave year (but subject to a maximum of 4 working weeks).

In this instant case the formula that should be applied is the 8%. The Complainant left her employment during the leave year and therefore the 1,365 rule cannot be applied. From the document presented by the Respondent I calculate that she worked a total of 1733.65 hours, the document shows she had 60 hours’ annual leave in 2017/22, if this is the only annual leave she took she is due to be paid for 78.69 hours’ annual leave. At the hourly rate of €9.25 per hour this amounts to a total of €727.88 and this amount should be paid to the Complainant.

Complaint CA – 00015191 – 002 – Section 11 – Organisation of Working Time Act.

I have no exact information on daily rest periods but from the document referred to above I believe breaches of daily rest periods are, in the words of the Respondent, very rare. The Respondent should take steps to ensure that an 11-hour daily rest period is afforded to all employees at all times. I am quite convinced that these occasions were not planned by the Respondent and on this basis no award is being made.

For outstanding annual leave entitlement, the Respondent is ordered to pay to the Complainant the sum of €727.88 and such sum should be treated as pay.