ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00017662
Parties:
| Complainant | Respondent |
Anonymised Parties | A Property Inspector | A Property Inspection Company |
Complaint:
Act | Complaint 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-00022777-001 | 22/10/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00022778-001 | 22/10/2018 |
Date of Adjudication Hearing: 08/03/2019
Workplace Relations Commission Adjudication Officer: James Kelly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints 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 complaints. The two complaints listed are a duplicate of each other so the complaints have been joined.
Background:
The Complainant is a property inspector who commenced employment with the Respondent on 23 January 2018. He said that he was paid €1,666.66 per month, which works out at approximately €77 per day. He normally worked 40 hours per week. |
Summary of Complainant’s Case:
The Complainant claims while he was working with the Respondent, he was constantly being under paid or his wages and expenses were late, not paid on time. He said he had to regularly follow up with his employer and chase down payment. He said there was always an excuse as to why he was not paid the proper amount or not paid on time. The Complainant said that he suffered an injury and was out of work for a number of weeks. He said that when he returned to work he tried to avail of the shifts that he had worked previously. He said that he was told that those shifts would be not available and all he was offered was the early shift which was unworkable for him going forward. After a period of time he had to hand in his notice, finishing up on 23 August 2018. The Complainant said that he was told that all monies owed to him would be paid. However, he was not paid for annual leave that had accrued for the year. He said that despite many phone calls, emails and text messages he has not yet received his final payslip or all his annual leave entitlement. |
Summary of Respondent’s Case:
The Respondent failed to attend the hearing. He was in contact with the WRC after the scheduled hearing claiming that he was not notified. He was advised that the hearing letters issued and were not returned from An Post and should he wish to seek an adjournment and the case to be relisted he should write to the WRC and set out his case. A time limit was set for receipt of that request. No request was received. |
Findings and Conclusions:
The Complainant referred his complaint to the WRC on 22 October 2018 alleging that he did not receive his annual leave entitlements and that he was not compensated for the loss of his annual leave on the termination of his employment. The Respondent contacted the WRC to say he was unaware the hearing was scheduled, and he was given ample time to submit an application to request for a relisting of this complaint. I note that the time limit for that application has well passed, and no application was received. I now proceed with the decision. The Law Section 19 of the Organisation of Working Time Act, 1997 stipulates that: “(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): Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.” Based on the uncontested evidence of the Complainant, I find that he worked for 31 weeks and usually worked 40 hours per week. Based on that calculation he worked 1,240 hours and in applying the law, he is entitled to 8 per cent of the hours he works in a leave year (but subject to a maximum of 4 working weeks) 8 per cent of 1240 is equivalent to 99 hours, or 12 and a half days holidays for the year. He said that he was paid 5 days holidays and therefore he is entitled to 7.5 days’ pay, which is outstanding. His daily wages were €77 per day and when multiplied by 7.5 days this equals €577.50. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
In the absence of contradictory evidence from the Respondent, I find that this complaint is well founded. I direct the Respondent to pay the Complainant €577.50 for the economic loss in respect of the annual leave. In addition, I direct the Respondent to pay the Complainant an additional €322.50 in compensation for breach of his rights under Section 19 of the Act. This amounts to €900 (nine hundred euro) in total. |
Dated: April 26th 2019
Workplace Relations Commission Adjudication Officer: James Kelly
Key Words:
Organisation of Working Time Act – annual leave entitlement- well founded - compensation |