Complainant

Respondent

Anonymised Parties

Area Manager

Contract Cleaning 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-00031080-001

23/09/2019

The Complainant said that he did not received his annual leave entitlement for 2018.

The Complainant is an area manager for the Respondent and a supervisor of cleaning staff. He commenced employment with the Respondent on 17 June 2018. The Complainant claims that due to certain conditions in work, mainly down to understaffing, he was not able to take any holidays until April 2019.

The Complainant said that it was his understanding that when he took leave in April 2019, he was using up his annual leave entitlement from 2018.

He said that he worked 1,451 hours in the annual leave period (17/06/2018 - 31/03/2019) and that his rate of pay per hour was €11.50. The Complainant claims that he is entitled to 116 hours of paid holiday for 2018.

The Complainant said that when he returned from another holiday in June 2019, we was informed that he was not getting paid for that holiday as all his holiday entitlement for 2019 had been exhausted.

The Complainant presented text messages received from his manager advising staff that there was to be no holidays in the December 2018 period and that “holiday is from April to April (sic)”. He said that nobody told him he could not carry over his leave.

The Complainant said that he was unlawfully stripped of his holiday entitlement for 2018, which equals to €1,335 (1,451hrs x 8% x €11.50).

The Respondent did not attend the hearing, nor did it engage in the process.

The law

Organisation of Working Time Act 1997

Times and pay for annual leave.

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 —

(i) within the leave year to which it relates,

(ii) with the consent of the employee, within the period of 6 months after the end of that leave year, or

(iii) where the employee —

(I) is, due to illness, unable to take all or any part of his or her annual leave during that leave year or the period specified in subparagraph (ii), and

(II) has provided a certificate of a registered medical practitioner in respect of that illness to his or her employer,

within the period of 15 months after the end of that leave year.

(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 note that the Complainant is still in employment with the Respondent and therefore Section 23 of the Act in relation to compensation on cesser of employment does not apply in this case.

The evidence presented indicates that the Respondent placed a ban on staff taking holiday leave for the month of December due to it being the busiest month. However, outside of that there is no evidence presented to suggest that the Complainant was unduly stopped by his employer from taking his annual leave entitlement from January to the start of April. I note the text message from the Complainant’s manager suggested that the leave year was “April to April”. The Complainant felt that allowed him to take his entitlement up to the end of April 2019. However, from a simple calculation it is clear that would create a 13-month working year period and it is unfortunate that the Complainant has erred here. It is common case that untaken leave can be lost if not taken. I note that there was no discussion or agreement between the Complainant and his employer on the carry over of leave. The Complainant simply erred in his calculations for taking leave.

I have considered the recent case law with regard to the annual leave entitlements. I do note in Case C-684/16, Max-Planck-Gesellschaft v Shimizu, where the claimant had accumulated 53 days annual leave due to him. He was invited to take that leave before his employment terminated, he only took two days leave. He then sought payment of an allowance equivalent to the balance. The relevant German law provided, in essence, that the fact that a worker had not requested any paid annual leave during the relevant reference period in principle resulted in the worker losing his entitlement to leave at the end of that period and, accordingly, the entitlement to an allowance in lieu of the leave not taken upon termination of the employment relationship.

The German Courts referred the following question to the Court of Justice of the European Union Does an employee lose their right to be paid in lieu of accrued but untaken annual leave in circumstances where the employee failed to request the leave, even though they were in a position to do so?

The Court of Justice of the European Union referred to Article 7 of the European Working Time Directive which allows for member states to prohibit employees carrying over their annual leave. However, this approach is only allowed in circumstances where the employee has had the opportunity to use their leave and the employer encourages their employees to take it. The Court of Justice of the European Union clarified that Article 7 of the European Working Time Directive allows for an unconditional entitlement to payment in lieu of accrued but untaken annual leave, however only in circumstances where the employment relationship is terminated.

The Complainant continues to work with the Respondent in the same capacity. Therefore, the recent caselaw mentioned above does not support the Complainant’s case.

I find that the complaint is not well founded.

Organisation of Working Time Act 1997 - Times and pay for annual leave -