Complainant

Respondent

Anonymised Parties

Job Initiative Team Leader/Supervisor

A Community Center

Representatives

Deirdre Canty SIPTU

Liz Murray A & M Employmentt Consultants

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-00022531-003

09/10/2018

The Complainant submitted a claim for the non payment of annual leave and Public Holidays.

After a significant number of Hearings, involving this issue and others, the Complainant clarified his claim at the above Hearing as follows;

20 Days annual leave due for 2017.

20 Days annual leave due for 2018

2 Public Holidays due for 2017

6 Public Holidays due for 2018.

The Complainant stated he was either out sick or suspended from work for a significant period of the time since late 2017 and all of 2018 up to his dismissal and could not take his leave entitlement and the case law supports this claim.

The Complainant stated this was a deliberate breach of the Act by the Respondent.

The Respondents Representative was not present at the final Hearing on this issue due to a car incident but the Respondent decided to go ahead with the case.

The Respondent stated they had paid the Complainat all his entitlements. They had paid him, since the previous Hearing, 20 days annual leave and 6 Bank Holidays. The Respondent denied they had any case to answer beyond these payments.

The Respondent contends that the Complainant was involved in other matters outside work and did not attend for work on a number of days he was due to attend thus reducing his leave entitlement during the period on question. The Respondent estimated the number of these days to be 17.

Section 27.4 of the Organisation of Working Time Act requires a Complainant to submit their claim in the six months after the date of the contravention. However, Section 27.5 allows the Adjudicator to extend this to twelve months for “reasonable cause”. The claim relating to the non payment of annual leave and Public Holidays was received by the WRC on October 9th 2018. The Complainants employment ceased on October 16th 2018. Therefore, the maximum eligible Period for consideration under section 27.5 is from October 17th 2017 to October 16th 2018. I am satisfied that due to ongoing difficulties with his employer in regard to sickness, suspension, the arranging of meetings , change of Representative etc. the Complainant had reasonable grounds to extend the period of eligibility to submit the claims from 6 months to 12 months. However, the rules regarding employees who have ceased employment are contained in Section 23 of the Act. They are;

23.—(1) Where—

(a) an employee ceases to be employed, and

(b) the whole or any portion of the annual leave in respect of

the current leave year or, in case the cesser of employment

occurs during the first half of that year, in respect

of that year, the previous leave year or both those years,

remains to be granted to the employee,

So as the Complainants employment ceased on October 16th 2018 and does not “occurs during the first half of that year in respect of that year, the previous year or both these years” the Complainant is limited in his claim under Section 27.5 to twelve months maximum.   He was paid 20 days annual leave after some time (his full annual leave entitlement), after he ceased employment so he has no further entitlement in respect of annual leave.   He was paid the 6 days Public Holidays due in 2018. He claimed he was not paid for two days Public Holiday due between October 15th and December 31st 2017. I award the Complainant two days Public Holiday for the period between October 15th 2017 and December 31st 2017   at his normal daily rate of pay as these fall within the 12 months eligible period as per Section 27.5.

I find the claim for two days Public Holiday pay well founded and the balance of the claim not well founded.

Annual Leave