Complainant

Respondent

Anonymised Parties

A Construction worker

A Construction firm

Representatives

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00021507-001

31/08/2018

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

CA-00021507-002

31/08/2018

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

CA-00021507-003

31/08/2018

The complainant started employment with the respondent on the 25th September 2017 and this ended on the 29th June 2018. There was a break in his employment between late February and April 2018. He said that the respondent did not pay his full annual leave entitlement. He also worked on the 19th March 2018 (the public holiday) but did not receive an additional day’s pay. In reply to the respondent, the complainant accepted that he had taken annual leave as stated by the respondent but outlined that he was entitled to a full leave year’s allocation as he worked over 1,365 hours. The complainant denied received the emailed terms of conditions of employment.

The respondent outlined that the complainant commenced work on the 25th September 2017, on an hourly rate of €24.44. He resigned on the 21st March 2018. He signed a new contract of employment on the 16th April 2018 on a new hourly rate of €28. He started working on the 23rd April 2018 and did not attend work on the 5th July 2018. The respondent held that the date of termination of employment was the 1st July 2018.

The respondent outlined that it paid the complainant for public holidays and acknowledged that it owed him one day’s pay. The complainant had worked on the St Patrick’s day public holiday and was due this additional day’s pay. The respondent stated that the complainant had been entitled to 14 days of annual leave and was paid for 13 days. He was, therefore, owed for one additional day.

The respondent outlined that it had issued the contract of employment to the complainant by email.

CA-00021507-001

This is a complaint pursuant to the Terms of Employment (Information) Act. The complainant asserts that he did not receive the statement required in section 3 of the Act; the respondent asserts that such a statement was emailed. The onus is on the employer to show compliance with the Act and that a statement was provided to the employee. The respondent, in this case, has not shown that such a statement was provided within two months of the start of employment, and the complaint is therefore well-founded. Taking account of the circumstances of the case, I award redress of €1,500.

CA-00021507-002

This is a complaint pursuant to the Organisation of Working Time Act for outstanding annual leave. The complainant asserts that he worked over 1,365 hours while working for the respondent. He says that he is, therefore, entitled to the full 20 days of paid annual leave provided by section 19 of the Act. The respondent asserts that the complainant was paid pro rata and accepts that he is owed for one day.

In Waterford City Council v O’Donoghue (DWT0963), the Labour Court held “The purpose of the Act is to provide employees with an entitlement to 20 days annual leave per year. Section 20 of the Act provides, inter alia, that the leave must be granted within the leave year as defined by s.2 or within six months thereafter where the employee consents to its deferral. Section 19(1) provides that the full statutory entitlement accrues to an employee in respect of a leave year in which he or she works at least 1,365 hours. But the entitlement still relates to each year of employment and not to a shorter period. Thus, the effect of s.19(1)(a) is that if an employee is employed for a full year but is absent from work during the year, his or her full entitlement still accrues if they worked the requisite hours during the year.The only leave year which is cognisable for the purpose of determining if an employee received his or her statutory entitlement is that prescribed by the Act itself, that is to say a year starting on 1st April and ending on 31st March the following year. While different arrangements may be put in place for administrative purposes, in determining if a contravention of the Act occurred that Court can only have regard to the leave allocated to an employees in the statutory period.”

Applying this authority to this case, I find that the entitlement to 20 days of paid annual leave arises where the employee works for the full leave year. The employee acquires a pro rata entitlement to paid annual leave where they work for less than a year. The respondent accepted that it owed the complainant for one additional day of paid annual leave and I, therefore, award him this additional day’s pay.

CA-00021507-003

This is a complaint pursuant to the Organisation of Working Time Act for unpaid public holidays. The complainant worked between the 25th September 2017 and the 21st March 2018 and between the 23rd April and 1st July 2018. The respondent accepted that the complainant was owed one additional day’s pay for having worked on the St Patrick’s Day public holiday and I award the complainant this additional day’s pay.

CA-00021507-001

I find that this complaint pursuant to the Terms of Employment (Information) Act is well founded and I award the complainant redress of €1,500.

CA-00021507-002

I find that the complaint pursuant to the Organisation of Working Time Act is, in part, well founded and I award the complainant one additional day’s pay.

CA-00021507-003

I find that the complaint pursuant to the Organisation of Working Time Act is, in part, well founded and I award the complainant one additional day’s pay.

Organisation of Working Time Act / statutory leave year

Waterford City Council v O’Donoghue (DWT0963)