ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00025147
Parties:
| Complainant | Respondent |
Anonymised Parties | Commis Chef | Café Restaurant |
Representatives | Self | No appearance |
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-00031967-001 | 02/11/2019 |
Date of Adjudication Hearing: 07/02/2020
Workplace Relations Commission Adjudication Officer: Maria Kelly
Procedure:
The complainant referred a complaint to the Workplace Relations Commission on 02 November 2019. The complaint was scheduled for hearing on 07 February 2020. At the time the adjudication hearing was scheduled to begin there was no appearance by or on behalf of the respondent. I checked that the respondent was on notice of the time, date and venue of the adjudication hearing. I allowed some time before commencing the hearing in case the respondent had been delayed. As I was satisfied that notice of the claim and the hearing had been sent to the business address of the respondent I proceeded with the hearing in the absence of the respondent.
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 was employed as a Commis Chef from 20 June 2019 to 04 October 2019. He normally worked 40 hours per week and he was paid €11.00 per hour. He gave notice on 28 September and resigned on 04 October 2019. His claim is that he was not paid for outstanding annual leave when his employment terminated and that he did not receive a public holiday or compensation for the public holiday that fell on 05 August 2019. The complainant had checked the public holiday box on the complaint form, but the narrative made it clear that the claim included vacation leave. |
Summary of Complainant’s Case:
The complainant worked as a Commis Chef for the respondent from 20 June 2019 to 04 October 2019. During the whole of his employment he was not allocated annual leave. He was not paid for his outstanding annual leave on termination of his employment. One public holiday occurred during his period of employment. He did not receive the public holiday, or any compensation as provided for in the Organisation of Working Time Act, 1997, and was not paid for it on termination of his employment. |
Summary of Respondent’s Case:
The respondent did not attend the adjudication hearing and did not make submissions to contradict the claim. |
Findings and Conclusions:
The complainant gave a clear account of his claim and he was a credible witness. He did not have copies of his payslips with him at the hearing and at my request he submitted these to the WRC following the hearing. The payslips cover weeks 25 to 40 inclusive. The payslips show payments for hours worked per week at the rate of €11.00 per hour. No payment was made for annual leave or the public holiday. Section 23 of the Organisation of Working Time Act, 1997 provides: Compensation on cesser of employment. 23.— [(1) (a) Where— (i) an employee ceases to be employed, and (ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee, the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave. (b) In this subsection— ‘relevant period’ means— (i) in relation to a cessation of employment of an employee to whom subparagraph (i) of paragraph (c) of subsection (1) of section 20 applies, the current leave year,
The complainant accrued six days annual leave for the period he was employed by the respondent. Based on the uncontested evidence of the complainant I find that the complainant did not receive annual leave during his employment and was not paid for annual leave at the date of termination of his employment. I am satisfied that the complaint in respect of annual leave is well founded.
One public holiday occurred during the period of employment that was on the first Monday in August 2019. The payslips submitted show that no payment was made to the complainant for the public holiday. I accept the uncontested evidence of the complainant that he did not receive any of the benefits provided for in Section 21 of the Organisation of Working Time Act, 1997, being a paid day off on that day, a paid day off within a month of that day, an additional day of annual leave or an additional day’s pay. Neither was he paid for the public holiday at the termination of his employment. Based on the uncontested evidence of the complainant I am satisfied that the complaint is well founded.
I find that the complainant is due payment for six days annual leave and one public holiday.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00031967-001 – Claim under the Organisation of Working Time Act, 1997. I find that the complaint was not paid for his outstanding annual leave at the date of termination of employment. This is a breach of Section 23 of the Organisation of Working Time Act, 1997. The complainant is due payment for six days annual leave. I find the complainant did not benefit from the public holiday that occurred on 05 August 2019 and did not receive any compensation as provided for in Section 21 of the Organisation of Working Time Act, 1997. The complainant is due payment for one day for the public holiday. I declare that the complaint is well founded. Having regard to all the circumstances I decide it is just and equitable to require the respondent to pay to the complainant compensation of €1000.00 which is inclusive of payment for six days annual leave and one public holiday. |
Dated: 12/08/2020
Workplace Relations Commission Adjudication Officer: Maria Kelly
Key Words:
Organisation of Working Time Cesser payment annual leave Public holiday payment |