ADJ-00016859

Complainant

Respondent

Anonymised Parties

Car Valeter

Car Valet Service Company

Act

Complaint 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-00021873-001

16/09/2018

The Complainant was employed as a car valeter with the Respondent. He claimed that he commenced his employment on 7th January 2017 and his employment was terminated on 13th August 2018. The Complainant claimed that he did not receive his annual leave entitlements.

The Respondent disputed the dates of commencement and cessation of employment and refuted the claim. However, the Respondent stated at the hearing that he had no evidence or any supporting information that he could submit in that regard. The Respondent claimed that his accountant has dealt with all employment related matters. The Respondent stated that his accountant was admitted to hospital on the morning of the hearing day due to a sudden, critical illness.  The Respondent requested that the hearing be relisted for another day. Taking the circumstances, as presented by the Respondent, into consideration it was agreed that by 21st December 2018 the Respondent would provide medical evidence /doctor/ hospital confirmation supporting his statement in respect of non-attendance of his representative. On the basis of such evidence his request to rehear the case would be considered. The Respondent was informed that in the absence of such medical evidence a decision would be issued on the basis of the evidence submitted at the hearing.

On 3rd January 2019 the WRC received email from the Respondent with a letter attached. The letter appeared to be from the accountant and was signed by Ms RB (her role was unclear). Ms RB apologised for the non-attendance of the accountant at the hearing and stated that he was unable to attend the hearing “due to a personal medical illness” and that he will attend the rescheduled hearing on 22nd February 2019.

WRC replied to the Respondent on 3rd January 2019 clarifying that the Respondent was required to provide medical evidence and, in the absence of such, a decision would be issued on the basis of the evidence submitted at the adjudication hearing. WRC noted that the documentation submitted did not provide the medical evidence requested to consider rehearing the case. WRC also clarified that there has been no hearing scheduled on 22nd February in respect of this complaint.

On 21st January 2019 the WRC received an email from the Respondent stating that they “believed that we would get the opportunity to present our records on the rescheduled date of 22nd February 2019.”

WRC replied by email on 22nd January 2019 confirming that there was no agreement to reschedule the hearing on 22nd February 2019. Moreover, WRC again informed the Respondent that the Adjudication Officer would agree to reschedule the hearing if relevant medical evidence was received. However, as a result of no such evidence being received the decision will be issued on the basis of the evidence submitted at the original hearing.

In the circumstance, I am satisfied that the Respondent was on notice of both the complaint and the adjudication hearing. I am satisfied that the Respondent was given ample opportunity to present satisfactory evidence in respect of his request to relist the hearing. No such evidence was furnished.

The Complainant submits that he started his employment with the Respondent on 7th January 2017. He claims that the Respondent furnished him with a contract of employment some 6 months later.

The Complainant submits that most of the time he worked part-time as he was first completing English course and then enrolled into a college. The Complainant claims that he worked 1,404 hours between January 2017 and January 2018 (13 weeks on 48 hours basis and 39 weeks on part-time basis at 20 hours a week).

The Complainant submits that he inquired about his annual leave from 26th July 2018 as he had an urgent trip to make. His leave request was approved. However, he claims that the Respondent paid him for 1 week only (€500).

The Complainant submits that he has worked for 1 year and 7 months without annual leave. The Complainant claims that he resigned his position and tried many times to resolve the matter. The Complainant exhibited copies of telephone text messages in that regard.

In his direct evidence the Complainant submitted that he was paid €10 per hour. He claimed that he was entitled to 20 days of annual leave in 2017 and 14 days in 2018.

The Respondent rejected the Complainant’s allegation. The Respondent disputed the dates of commencement and cessation of employment but was not able to provide alternative dates. The Respondent stated that the Complainant was paid all what he was entitled to. The Respondent stated that it keeps all records as required under the Organisation of Working Time Act, 1997. However, the Respondent had no details or any evidence to support these assertions.

The Complainant submits that he received only one week’s paid leave during the period from 7th January 2017 to 13th August 2018 when he resigned his position. The Respondent denies the claim.

The Respondent was not in a position to present any details of what the Complainant’s working hours were and what annual leave has been given and/or paid to the Complainant. The Complainant gave clear evidence of the hours he worked and the circumstances in respect of the annual leave he was paid for. He also presented telephone text messages spanning from July to September 2018 whereby he repeatedly inquired about the outstanding annual leave payment. On balance, I find the Complainant’s evidence compelling and credible.

Pursuant to Section 41(6) of the Workplace Relations Act 2015, I have jurisdiction to investigate any complaint under the Organisation of Working Time Act 1997 for a period of six months from the date of the referral of complaint. This complaint was presented to the WRC on 16th September 2018 and therefore the cognisable period that may be investigated is 17th March 2018 to the date of termination. I note that Section 2(1) of the Act stipulates that “leave year” means a year beginning on any 1st day of April”. Therefore, I may adjudicate on the period from the 1st April 2017 to the 13th August 2018.

Section 19 of the Organisation of Working Time Act, 1997 stipulates that:

(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.”

Section 23 of the Act provides that on termination of the employment an employee is entitled to be paid all accrued annual leave due and not paid. The employer must compensate the employee for any unused annual leave that was accrued during the leave year during which the employment ceases. If the employment ceases in the first half of the leave year, the employee must be compensated for any annual leave accrued in that leave year and the previous leave year.

Given the different hours of work that applied throughout the Complainant’s employment and in the absence of any records in respect of his hour of work it is not possible to ascertain the exact value of the Complainant’s entitlements. In that regard, I accept the Complainant’s evidence that he worked 20 hours a week for some 39 during a calendar year (when in college) and 48 hour a week for 13 weeks (when off college), totalling approximately 1,404 hours a year. On that basis, I find that the Complainant would have worked an average of 117 hours a month. The Complainant was absent from work from around 26th July 2018 until he resigned his position in August 2018. The Complainant, therefore would have been entitled to approximately 148 hours in respect of annual leave (8% of 1,852.50 hours worked). The Complainant confirmed that he received a payment of €500 in respect of his annual leave entitlements.

Having considered the submissions of both parties and the evidence adduced at the hearing of this complaint, I declare this complaint well founded. I direct the Respondent to pay the Complainant €980 in respect of the annual leave due and not paid on termination of the employment.

In addition, I direct the Respondent to pay the Complainant €1,000 in compensation for breach of his rights under this Act.

Annual leave- organisation of working time act