Complainant

Respondent

Anonymised Parties

Operations Manager

A Bar

Representatives

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-00032595-001

29/11/2019

The complainant submits that he did not receive his full annual leave entitlement during his time working with the respondent.

The complainant commenced employment on 31 January 2019 resigned his position on 26th July 2019 and finished work on 10th August 2019. His salary was €45,000.

The complainant submitted that during his employment he took 5 days annual leave in July 2019 and that when he left his employment he expected that he would receive his outstanding annual leave balance. After many emails to the respondent he received payment for 16.7 hours annual leave but submitted that there remained a balance of 71.3 hours owing to him.

The respondent submitted that the complainant had been paid all his annual leave entitlement and in fact had been over paid by 1 day and .7 of an hour but that the respondent did not seek to recoup same.

The complainant had sent emails in February seeking 2.5 days annual leave and in July had submitted an annual leave form which set out that he was taking annual leave from 6 July 2019 until 17 July 2019. It was submitted that the complainant had in error put down that this annual leave totalled 5 days annual leave.

The complainant worked 39 hours per week and given the nature of the work it was not appropriate for the complainant to do his work remotely. The complainant was paid in full during his employment.

The complainant submits that he is owed annual leave and the respondent submits that he was in fact over paid annual leave.

Section 19 of the Organisation of Working Time Act, 1997 sets out 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 25(1) of the Act requires employers to keep records:

“An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this Act and, where applicable, the Activities of Doctors in Training Regulations are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making.”

In accordance with Section 41 (6) of the Workplace Relations Act 2018, the cognisable period for the herein complaint is six months from the date of the referral of the complaint which gives a cognisable period from 30th May 2019 until 29th November 2019. Section 2(1) of the Act defines the Leave Year as “a year beginning on any first day of April”, therefore, in accordance with the provisions of Section 23(1)(b)(ii) of the Act I am satisfied that any outstanding annual leave accrued during the annual leave year 2018/2019 (i.e. 1 April 2018 to 31 March 2019) and 2019/2020 (i.e. 1 April 2019 to 31 March 2020) is covered by this complaint.

There is an onus on the respondent to keep appropriate records and I do find that the records kept meet the standards required by the provisions of the act. To calculate annual leave entitlements it is necessary to apply Section 19(1)(b) and Section 19(1)(c) to this complaint. During the leave year 2018/2019 the complainant accrued 27.3 hours annual leave and I am satisfied that the complainant did not take annual leave taken during this annual leave year. During the leave year 2019/2020 the complainant accrued 59.09 hours annual leave and I am satisfied that the complainant took 40 hours annual leave in July as per the annual leave form signed by the CEO. I do not find evidence to support the respondent’s submission that the complainant made an ‘error’. I find that the complainant therefore took 40 hours annual leave in the 2019/2020 annual leave year and was paid for a further 16.7 hours when his employment ceased. In effect, during the leave year 2018/2019 the complainant accrued 27.3 hours annual leave and in 2019/2020 the complainant’s outstanding accrual is 2.4 hours annual leave. I find the complaint is well founded and order the respondent to pay the complainant 29.7 hours annual leave at the rate of €21.63 which is €642.41.

I find that the complaint is well founded and order the respondent to pay the complainant €642.41.

Annual leave.