ADJUDICATION OFFICER DECISION

CORRECTION ORDER ISSUED PURSUANT TO SECTION 39 OF THE ORGANISATION OF WORKING TIME ACT 1997

This Order corrects the original Decision issued on 15 February 2019 and should be read in conjunction with that Decision

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00016090

Parties:

	Complainant	Respondent
Anonymised Parties	A Chef	A Restaurant

Representatives

Complaint:

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-00020898-001	30/07/2018

Date of Adjudication Hearing: 10/12/2018

Workplace Relations Commission Adjudication Officer: Louise Boyle

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The complainant detailed that he never received for annual leave or public holidays benefit while working with the respondent.

Summary of Complainant’s Case:

The complainant detailed that he commenced work on 15 January 2018 and resigned on17th June 2018. He submitted his claim on 30th July 2018.

He was head chef at the restaurant and detailed that he worked very long hours of between 60-75, averaging approximately 66 hours per week, in a very stressful environment.

He claimed that he was owed for 4 public holidays and never took annual leave.

Summary of Respondent’s Case:

The respondent did not attend on the day

I confirmed that a letter had issued notifying the Respondent of the date, time and location of the hearing, and in the circumstances, I find that their non-attendance without any acceptable explanation to be unreasonable in the circumstances

Findings and Conclusions:

The complainant detailed he had not received his full annual leave entitlements during his employment.

Section 19 of the Act details that an employee should be entitled to 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):

By application of the time limit provided for at Section 27(4) of the Act the cognisable period for the purpose of this claim is confined to the six-month period ending on the date on which the complaint was presented to the Workplace Relations Commission, therefore, the cognisable period covered by the claim is the six-month period from 31st January 2018 until 30th July 2018.

I am satisfied that the complainant commenced employment on 15 January 2018 and ceased on 17th June 2018. He referred his claim on 30th July 2018. The Complainant worked an average of 66 hours per week which over the cognisable period is approximately 1,287 hours at the rate of €25.50 per hours. He accrued a statutory entitlement of 110 hours as he worked at least 117 hours monthly in the cognisable period at the rate of €25.50.

With regard to his claim for public holiday, Section 21 details that an employee should be entitled to the benefit of the public holiday as follows:

“ (a) a paid day off on that day,

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

(d) an additional day’s pay:

I find that in respect of the Public Holiday that occurred within the cognisable period between 31st January – 30th July 2018, the complainant is entitled to the benefit of the 4 public holidays for which he did not receive the Public Holiday Benefit of one-fifth of the normal weekly rate of pay. I find the Respondent did not act in accordance with the provisions of S.I. 475/1997 – Organisation of Working Time (Determination of pay for Holidays) Regulations, 1997 on this matter.

This claim is well founded.

Accordingly, the complainant’s claims for annual leave and public holiday are well founded and I order the Respondent to pay to the Complainant compensation to the sum of €2,805 for his annual leave entitlement and an additional €797.60 for the benefit owed for the public holidays. The respondent is ordered to pay, therefore, the total sum of €3,602.60.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

The claim succeeds, and the respondent is ordered to pay the total sum of €3,602.60.

Dated: 15th February, 2019

Workplace Relations Commission Adjudication Officer: Louise Boyle

Key Words:

Annual leave, public holidays, respondent did not attend