Complainant

Respondent

Anonymised Parties

A Kitchen Helper

A Food Takeaway

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-00019801-001

15/06/2018

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

CA-00019801-002

15/06/2018

The complainant was employed as a Kitchen Helper from 19th April 2017 until 8th February 2018. The complainant was paid €9.25 per hour and worked approximately 10 hours per week. The complainant’s rate of pay increased to €9.55 per hour with effect from 1st January 2018. The complaint relates to annual leave entitlements that the complainant states he did not receive in line with the provisions of the Organisation of Working Time Act, 1997.

Timing of the complaint.

The complaint was submitted to the Workplace Relations Commission on 15th June 2018. The cognisable period of the complaint is therefore from the 16th December 2017 until 15th June 2018.

The complainant stated that he sought his annual leave entitlements from the respondent throughout his employment. The complainant submits that the respondent claimed that it did not provide annual leave entitlements to part-time employees. The complainant contends that when he was let go on 8th February 2018, he continued to seek his entitlements with the assistance of the Citizens Information Service and through the Mediation Services of the Workplace Relations Commission. The complainant stated that despite numerous attempts at resolving the outstanding issues, the respondent did not acknowledge that the complainant had an entitlement to annual leave.

The respondent did not attend the adjudication hearing and was not represented.

It is unfortunate that the employer did not attend the adjudication hearing to put forward its position in relation to the complaint.

The Applicable Law

Section 19(1) of The Organisation of Working Time Act, 1997 provides as follows:

19(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):

Working Hours

On the basis of working 10 hours per week, the complainant worked a total of 360 hours in the 2017 calendar year. The monetary value of the complainant’s annual leave entitlements for this period based on 8% of the total hours worked at €9.25 per hour equates to €266.40.

On 1st January 2018, the complainant’s rate of pay increased to €9.55 per hour. Between the 1st January 2018 and 8th February 2018, the complainant worked approximately 70 hours. The monetary value of the complainant’s annual leave entitlements for this period based on 8% of the total hours worked at €9.55 per hour equates to €53.48.

The complainant is therefore entitled to €319.88 in respect of annual leave entitlements.

Based on the uncontested evidence of the complainant, I conclude that the complaint is well founded.

The respondent is directed to pay the complainant €319.88 in respect of his annual leave entitlements plus an additional €200 in compensation for the infringement of the complainant’s employment rights.

The complainant stated that he did not receive any Public Holiday entitlements while employed by the respondent.

The respondent did not attend the adjudication hearing and was not represented.

It is unfortunate that the respondent did not attend in order to put forward its position in relation to the complaint.

The Applicable Law

Section 21 of the Organisation of Working Time Act, 1997 provides:

21(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:

I find that within the cognisable period of this complaint (16th December 2017 – 15th June 2018) there were three Public Holidays while the complainant was still employed by the respondent. The Public Holidays in question were Christmas Day 2017, St Stephen’s Day 2017 and New Year’s Day 2018. The complainant confirmed that he did not receive Public Holiday entitlements for these Public Holidays and provided a signed letter from the respondent owner to this effect.

Based on the uncontested evidence of the complainant, I conclude that the complaint is well founded. The complainant is entitled to one fifth of a week’s pay in respect of each Public Holiday. This equates to €18.50 per Public Holiday while receiving €9.25 per hour and €19.10 for the Public Holiday that occurred on 1st January 2018 when the complainant’s rate of pay increased to €9.55 per hour.

The respondent is directed to pay the complainant €56.10 in respect of Public Holiday entitlements plus an additional €200 in compensation for the infringements of the complainant’s employment rights.

Annual Leave entitlements, Public Holiday entitlements