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-00015969-002

23/11/2017

The complainant was employed by the respondent from 6th February 2017 until 30th June 2017. The complainant was paid €15.60 gross per hour. The complaint relates to Annual Leave entitlements which the complainant states were not provided to him.

The complainant stated that he did not receive his annual leave entitlements while in the employment of the respondent.

The respondent stated that the complainant received his annual leave entitlements. The respondent stated that the complainant’s last day of employment was on 30th June 2017. The respondent stated that the complainant left the employment of his own accord and made no further contact until 1st January 2018 when he sought to be re-employed.

In relation to this complaint I find as follows:

The complaint was submitted to the Workplace Relations Commission on 23rd November 2017. The cognisable period of the complaint is the six-month period prior to the complaint being made (24th May 2017 to 23rd November 2017). The complainant left the employment on 30th June 2017. The period relating to outstanding annual is therefore 24th May 2017 – 30th June 2017.

The Applicable Law

Annual leave entitlements are set out in Section 19 of the Organisation of Working Time Act, 1997 as follows:

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):

Employment Records

The requirement to keep records is set out in Section 25 of the Organisation of Working Time Act, 1997 as follows:

25.(1) An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this Act and, where applicable, the Activities of Doctors in Training Regulations are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making.

(2) The Minister may by regulations exempt from the application of subsection (1) any specified class or classes of employer and regulations under this subsection may provide that any such exemption shall not have effect save to the extent that specified conditions are complied with.

(3) An employer who, without reasonable cause, fails to comply with subsection (1) shall be guilty of an offence.

(4) Without prejudice to subsection (3), where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act or the Activities of Doctors in Training Regulations in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.

In the instant case the respondent did not provide any evidence that records had been retained to show that the complainant received his annual leave entitlements. Accordingly, I find that the complaint is well founded. The complainant became entitled to receive 2 days of annual leave in the five-week period from 24th May 2017 to 30th June 2017.

Having considered the submissions of both parties, I declare that the complaint is well founded. The respondent is directed to pay the complainant €249.60 in respect of 2 days of annual leave. Payment should be discharged to the complainant within 42 days of the date of this decision.

Annual Leave entitlements