ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00015881

Parties:

Complaints:

Date of Adjudication Hearing: 10/12/2018

Workplace Relations Commission Adjudication Officer: Jim O'Connell

Procedure:

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

CA -00020672-001

Organisation of Working Time Act 1997

Background

The claimant commenced employment with the respondent on the 1st August 2015 until then 8th June 2018 as a courier. His net pay was €500 a week for working 50 hours.

The claimant stated the following;

1. that he did not receive any holiday entitlement during that 5-month period or holiday pay.
2. In 2016 he worked the whole year, took one week’s holiday (he did not get paid for this)
3. In 2017 he worked the whole year, had no holidays or received no holiday pay.
4. In 2018 he worked 5 months and received no holidays or holiday pay.
5. The courier route was sold by the respondent and the claimant began working for the new owner around the 8th June 2018.

The respondent submitted that the claimant was paid his full holiday entitlement.

Findings

The complaint was received 20th July 2018.

Section 19 of the Act states;

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):

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.

(2) A day which would be regarded as a day of annual leave shall, if the employee concerned is ill on that day and furnishes to his or her employer a certificate of a registered medical practitioner in respect of his or her illness, not be regarded, for the purposes of this Act, as a day of annual leave.

(3) The annual leave of an employee who works 8 or more months in a leave year shall, subject to the provisions of any employment regulation order, registered employment agreement, collective agreement or any agreement between the employee and his or her employer, include an unbroken period of 2 weeks.

(4) Notwithstanding subsection (2) or any other provision of this Act but without prejudice to the employee's entitlements under subsection (1), the reference in subsection (3) to an unbroken period of 2 weeks includes a reference to such a period that includes one or more public holidays or days on which the employee concerned is ill.

(5) An employee shall, for the purposes of subsection (1), be regarded as having worked on a day of annual leave the hours he or she would have worked on that day had it not been a day of annual leave.

(6) References in this section to a working week shall be construed as references to the number of days that the employee concerned usually works in a week.

20.—(1) The times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements and subject—

(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 within the leave year to which it relates or, with the consent of the employee, within the 6 months thereafter.

(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 pay determined in accordance with regulations made by the Minister for the purposes of this section.

I find that the complaints for 2015, 2016 and up to 19th July are out of time

I find that the reference period is from the 19th July 2017 to the 20 July 2018.

I find there is a conflict of evidence between the claimant and the respondent in relation to the holidays and holiday pay.

I find that the respondent has no records to show that the claimant got his annual leave in accordance with the act.

I find that having examined the pay slips the claimant was paid for the entire period.

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.

Based on the limit evidence available I find the complaint to be well-founded and I award the claimant €2000 in compensation for breach of the act.

CA-00020672-002

Organisation of Working Time Act 1997

The claimant commenced employment with the respondent on the 1st August 2015 until then 8th June 2018 as a courier. His net pay was €500 a week for 50 hours.

The claimant stated;

2018. that he did not receive Public holiday entitlement from August 2015 to 8th June 2018 the courier route was sold by the respondent and the claimant began working for the new owner around the 8th June 2018.

The respondent submitted that the claimant was paid for all his Public holidays.

Findings

The complaint was received on the 20th July 2018

Section of the Act;

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:

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.

I find that complaints prior to the 19th July 2017 are out of time.

The relevant period is from the 19th July 2017 to the 20th July 2018.

I find there is a conflict of evidence between the claimant and the respondent in relation to Public holidays.

I find that the respondent has no records to show the entitlements the claimant received for Public Holiday.

I find that the claimant in accordance with Section 21 did not get paid his Public holidays in accordance with the act.

Decision

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

Based on the limited evidence available I find the complaint to be well founded and I award the claimant €500 compensation in respect breach of the act.

Dated:   January 31st 2019

Workplace Relations Commission Adjudication Officer: Jim O'Connell