ADJ-00023973

Complainant

Respondent

Anonymised Parties

A Cleaner}

A Cleaning Company

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 15 of the European Communities (Organisation of Working Time) (Mobile Staff in Civil Aviation) Regulations 2006 - S.I. No. 507 of 2012

CA-00029972-001

26/07/2019

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

CA-00029972-002

26/07/2019

The Complainant asserts that she was not paid annual leave or bank holidays by the Respondent when she worked as a cleaner. Her salary was €185.27 for a 19-hour week. 

At the outset of the hearing the Complainant said that she had ticked the wrong box with regard to her complaint of  non-payment of   annual leave (CA-00029972-001) on the complaint form and  inadvertently submitted the complaint for adjudication under Regulation 15 of the European Communities (Organisation of Working Time) (Mobile Staff in Civil Aviation) Regulations 2006 – S.I. 507 of 2012. She requested that I amend the Complaint to seek adjudication under Section 27 of the Organisation of Working Time Act 1997. In considering this application, I deem that the there is no difference in substance to the complaint i.e. non-payment of annual leave, but that the only distinguishing issue is the technical one as to what regulation/provision should be applied when seeking adjudication. I don’t believe that such a nuanced distinction could prejudice the Respondent in responding to the substantive claim therefore I amend the Complaint accordingly.

Annual Leave

The Complainant commenced employment on the 06/02/2017 and terminated her employment on the 11/06/2019. Outside of the receipt of one weeks paid holiday in 2017, she did not receive any other annual leave entitlement from the Respondent nor did she receive any payment for outstanding annual leave from her employer contrary to sections 19 and 20 of the Organisation of Working Time Act, 1997. She was told by the Respondent that she had to work overtime, extra to the hours she worked, to avail of leave.

Public Holidays:

The Complainant submitted that she never received payment for Public Holidays or was given the requisite time off contrary to Sections 21 and 22 of the Organisation of Working Time Act (The Act). The Complainant asserts that upon request to the Respondent for her entitlement for public holiday entitlements under the Act, the Respondent requested that she would need to work overtime on the previous Saturday to a holiday for her entitlement to kick in. The Complainant confirmed that she worked at least 40 hours in the immediate 5 weeks prior to all the Public Holidays.

I allowed a 30-minute interval after the scheduled hearing commencement time to await the arrival of the Respondent. The Respondent did not attend, and I am satisfied that the Respondent received adequate notification of the location, time and date of the hearing.

Annual Leave

The Organisation of Working Time Act 1997 deals with entitlement to annual leave at Sections 19 and 20:

(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…

20. Times and pay for annual leave:

(a) to the employer taking into account—

(i) the need for the employee to reconcile work and any family responsibilities,

(ii) the opportunities for rest and recreation available to the employee,

(b) to the employer having consulted the employee or the trade union (if any) of which he or she is a member, not later than 1 month before the day on which the annual leave or, as the case may be, the portion thereof concerned is due to commence, and

[(c) to the leave being granted—

(i) within the leave year to which it relates,

(ii) with the consent of the employee, within the period of 6 months after the end of that leave year, or

(iii) where the employee—

(I) is, due to illness, unable take all or part of his or her annual leave during that leave year or the period specified in subparagraph (ii), and

(II) has provided a certificate of a registered medical practitioner in respect of that illness to his or her employer,

within the period of 15 months after the end of that leave year].

(2) The pay in respect of an employee's annual leave shall—

(a) be paid to the employee in advance of his or her taking the leave,

(b) be at the normal weekly rate or, as the case may be, at a rate which is proportionate to the normal weekly rate, and

(c) in a case in which board or lodging or, as the case may be, both board and lodging constitute part of the employee's remuneration, include compensation, calculated at the prescribed rate, for any such board or lodging as will not be received by the employee whilst on annual leave.

(3) Nothing in this section shall prevent an employer and employee from entering into arrangements that are more favourable to the employee with regard to the times of, and the pay in respect of, his or her annual leave.

(4) In this section “normal weekly rate” means the normal weekly rate of the employee concerned's pay determined in accordance with regulations made by the Minister for the purposes of this section.

27. Complaints to adjudication officer:  

(1) In this section “relevant provision” means—

(a) any of the following sections, namely, section 6(2), sections 11 to 23, or section 26,

[(aa) any of the following regulations of the Activities of Doctors in Training Regulations namely, regulations 5 to 10,]

(b) the provision referred to in section 6(1) of regulations, a collective agreement, registered employment agreement or employment regulation order referred to in that section, or

(c) paragraph 9 of the Fifth Schedule.

(2) [ … ]

[(3) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely—

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the employee's employment.

Based on the uncontested evidence of the Complainant, and the documentary evidence of her bank account and pay slips provided on the day, I have decided that the Complainant did not receive her entitlement to annual leave in 2018 and 2019, nor did she receive any payment  for annual leave which was untaken upon termination of her employment. Not being able to take annual leave, or not to be paid for it, is a serious matter that has at its centre the health and welfare of the employee. The award here is in not in respect of remuneration, including arrears of remuneration, but concerns more weighty matters.   I am minded of the decision in Cementation Skanska v Carroll DWT 38/2003. In this  case, the Labour Court said that, given the requirements of Art.7 of the Working Time Directive, an award of compensation for loss of annual leave “need not be limited to the value of the lost holidays”. The Court recognised that, where the right to annual leave is infringed, the redress provided “should not only compensate for economic loss sustained but must provide a real deterrent against future infractions”. I have decided that this claim is well founded, and I conclude that it is just and equitable to award the Complainant €1,000 under section 27 of the Organisation of Working Act.

Public Holidays;

The Organisation of Working Time Act 1997 deals with entitlement to Public Holidays at sections 21 and 22: 

21. Entitlement in respect of public holidays:

(1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—

(a) a paid day off on that day,

(b) a paid day off within a month of that day,

(c) an additional day of annual leave,

(d) an additional day's pay:

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.

(2) An employee may, not later than 21 days before the public holiday concerned, request his or her employer to make, as respects the employee, a determination under subsection (1) in relation to a particular public holiday and notify the employee of that determination at least 14 days before that holiday.

(3) If an employer fails to comply with a request under subsection (2), he or she shall be deemed to have determined that the entitlement of the employee concerned under subsection (1) shall be to a paid day off on the public holiday concerned or, in a case to which the proviso to subsection (1) applies, to an additional day's pay.

(4) Subsection (1) shall not apply, as respects a particular public holiday, to an employee (not being an employee who is a whole-time employee) unless he or she has worked for the employer concerned at least 40 hours during the period of 5 weeks ending on the day before that public holiday.

(5) Subsection (1) shall not apply, as respects a particular public holiday, to an employee who is, other than on the commencement of this section, absent from work immediately before that public holiday in any of the cases specified in the Third Schedule.

(6) For the avoidance of doubt, the reference in the proviso to subsection (1) to a day on which the employee is entitled to a paid day off includes a reference to any day on which he or she is not required to work, the pay to which he or she is entitled in respect of a week or other period being regarded, for this purpose, as receivable by him or her in respect of the day or days in that period on which he or she is not required to work as well as the day or days in that period on which he or she is required to work.

Based on the uncontested evidence before me I have come to a decision that the Complainant did not receive her bank holiday entitlements whilst in the employment of the Respondent under section 21 of the Organisation of Working Time Act. I conclude also that she had worked at least 40 hours in the five weeks previous to the public holidays in the reference period. I therefore consider that her complaint is well founded and award her €300, which I consider to be just and equitable having considered the circumstances laid before me.

CA-00029972-001

I have decided that the complaint is well founded, and that Complainant did not receive her entitlements to annual leave. I award compensation of €1000 under section 27 of the Organisation of Working Time Act 1997.

CA-000229972-002

I have decided that the complaint is well founded, and that Complainant did not receive her entitlements to public holidays. I award compensation of €300 under section 27  of the Organisation of Working Time Act 1997.

Annual Leave, Public Holidays