ADJ-00015118

Complainant

Respondent

Anonymised Parties

A Cleaner

A Hotel

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-00019713-001

11/06/2018

The Complainant claims that she has not received any holiday pay for 2017.

The Respondent said that he did not believe that she was entitled to holiday pay.

The Complainant claims that she has not received any holidays or holiday pay for the year 2017. She said that when she asked the owner, Mr. A about her entitlements, she was told that she was not entitled to holiday pay as she does not get paid for hours worked but instead for the number of beds cleaned and dressed.

The Complainant said that she was paid for all her holiday pay entitlements in 2016. She said that she was required to have her specific work papers in order at the time as she was registered as a job seeker and her employer had to have everything in order also for the social welfare office. However, her job seekers status ended in September 2017 and ever since then her conditions changed, and she was told that she was not entitled to holiday pay.

The Complainant said that she went with the same request to her new manager, Ms. B; and Ms. B said that she did not care about decisions of past management, referring to paid holidays for 2016, that the Complainant has no rights to request anything from the Respondent as there is no written contract of employment.

The Complainant said that she worked approximately 21 hours and 30 minutes per week. She was paid approximately €10 per hour. The Complainant said that she has not worked since the end of December 2018.

Mr. A, owner of the Respondent attended at the hearing. He stated that he owns a small hotel, with multiple beds in each room, some 10-bed and 14-bed bedrooms. He said that it is not a big operation. He said that he was a very good employer to his staff and accommodated the Complainant by allowing her to bring her children to work with her when she was cleaning the rooms to save her child minding costs.

He said that he was audited by the Workplace Relations Commission’s Inspectorate and has to change his approach, - including not employing staff on Sunday so that he does not have to pay a Sunday premium, and instead get them into work earlier on the Monday morning.

He said that he paid the Complainant per bed cleaned and dressed and not by the hour, and that she would have benefited better that way. He said he never questioned the Complainant’s work, and always paid without doubt the number of beds she said she worked on.

The Relevant Law

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.

Findings and Conclusions

This claim is pursuant to the Organisation of Working Time Act and it relates to annual leave entitlement under Section 19. The Complainant claims she is due annual leave compensation for all hours worked. Section 19 of the Act provides that an employee is entitled to be paid either,

(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):

Having regard to the evidence adduced, I am satisfied that the Complainant was normally expected to work 21 hours 30 minutes per week. Her average working weekly pay was €215. I am also satisfied that she worked there throughout 2017 and did not receive any holidays or holiday pay. Accordingly, I find that the Complainant had an entitlement to €860 in unpaid holiday pay for 2017. I am satisfied that the Complainant was not paid this entitlement by the Respondent.

Essentially, I find there is no conflict of evidence between the Complainant and the Respondent in relation to the holidays and holiday pay. The Complainant said that she did not get paid for annual leave and the Respondent agrees but has attempted to explain that the Complainant was not entitled to holidays, or holiday pay because she got paid for each bed worked on, and it was an arrangement that they had agreed on. Notwithstanding, I find holiday pay simply was not paid for 2017.

I find that the Respondent has no documentation or records to show the hours worked by the Complainant and therefore I will rely on the Complainant’s records.

I find that the Respondent was rather dismissive of the Workplace Relations Commission and its role, I suspect this was mainly due to the fact that he was recently audited by the Workplace Relations Commission’s Inspectorate and was rather annoyed that he now had to comply with the legislation and he highlighted the burden and implications for him and his business.

Given all the evidence adduced I am satisfied that the case is well founded.

I find that the complaint made pursuant to the Organisation of Working Time Act 1997 is well founded.

In accordance with the provisions of Section 27 of the Act, I require the Respondent to pay to the Complainant the amount of €1,720 [one thousand, seven hundred and twenty euro] as compensation for the effects of the breach of section 19 of the Act; €860 for the economic value of the shortfall, plus €860 in compensation for the effects of the breach.

I also order the employer to comply with the relevant provision of the of the Organisation of Working Time Act, 1997 from this point onward.

Organisation of Working Time - holiday pay - breach of section 19 – case well founded - compensation