Complainant

Respondent

Anonymised Parties

Chef

Hotel

Representatives

Self-Represented

Mr Barry O’Mahony BL instructed by Mr Aidan McGrath, ARAG Legal Protection

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-00034793-001

23/02/2020

The Complainant commenced employment with the Respondent on 6th August 2018. At all times the Complainant’s role was described as “chef”. The Complainant received a salary that equated to a weekly gross payment of €672.75, with the issue of an overtime payment constituting a significant portion of the substantive matter.

The Complainant lodged the present complaint with the Commission on 23rd February 2020, whilst still in the Respondent’s employment. By the date of the hearing the Complaint remained in employment with the Respondent, although he had been laid off for a number of months as a consequence of the restrictions arising from the Covid-19 pandemic.

A hearing in relation to this matter was convened and finalised on 15th December 2020. This hearing was conducted by remotely by means of an online platform, with neither party experiencing technical issues during the same.

Both parties issued extensive written submissions in advance of the hearing and availed of the opportunity to call witnesses to give direct evidence. Both parties also availed of the opportunity to cross examine said witnesses when required. On the direction of the Adjudicator, further submissions were received from both sides and copied to both parties. For the avoidance of doubt, this decision will relate to issues that were raised in advance of and during the hearing only. 

In summary, the Complainant alleged that the Respondent owed him a significant amount of compensation as regards over time hours. He stated that a local agreement existed that permitted him to take these hours “in lieu” of hours worked. He submitted that the Respondent’s failure to compensate him for the same constituted a breach of the Act. By response the Respondent submitted that no such agreement existed and that the Complainant had been compensated for all statutory and contractual entitlements.

At the outset of the hearing, the representative for the Respondent raised two preliminary points as to my jurisdiction to hear the matter as presented. Firstly, they submitted that a great deal of the substantive complaint was statute barred. They further submitted that the complaint itself was misconceived as the relevant section of the Act did not allow for recovery of the same.

The matter as presented by the Complainant related to the non-payment of overtime accumulated from the commencement of his employment in 2018. At the outset of the hearing, the Respondent submitted that the relevant period for the purposes of the Act extended from six months prior to the lodgement of the complaint, or from 23rd August 2019 to 23rd February 2020.

The Complaint applied to have the relevant time limit extended by 12 months, due to the existence of “reasonable cause”. In support of the same, he submitted that he had been informed by the then general manager in early 2019 that he would be entitled to carry forward his untaken annual leave entitlement. When he sought to raise the issue with management in early 2020 he was informed that no such arrangement existed. It was at this point that he submitted the present complaint.

By response, the Respondent, while denying that any such representation had been made, stated that the rationale offered by the Complainant did not constitute “reasonable cause” in the circumstances. They submitted it was entirely unreasonable for the Complainant to allow eighteen months to expire prior to lodging his complaint. They submitted that the actual reason for the Complaint’s failure to lodge the complaint in time was that he was unaware of the legal requirement for him to do so. In this regard, they referred to the fact that the Complainant did not seek to extend the relevant period in advance of the hearing, and only responded to the matter when the Respondent submitted that it was out of time. For the avoidance of doubt they also disputed that the alleged conversation occurred at all.

Section 41(6) of the Workplace Relations Act 2015 provides that,

“…an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

Section 41(8) of the Workplace Relations Act 2015 provides that,

“An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

In the matter of Cementation Skanska (Formerly Kvaerner Cementation) v Carroll DWT0338 the Labour Court described the test in respect of establishing such “reasonable cause” in the following terms,

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

In the present case, it is clear that the Complaint is relying upon an alleged representation from member of management to ground his application for an extension of time. Taking this application at its height, the Complainant still waited for over one year from the date of the alleged representation to lodge the present complaint. While it may be said that the Complainant was allowing the purported entitlement to accrue during this period, it is inconceivable that he did not seek to rely on the entitlement, clarify the basis for the same or raise the matter at all in the intervening period. As such I cannot find that the Complainant has established “reasonable cause” for the extension of the relevant period.

In addition to the foregoing point, the Respondent submitted that the Organisation of Working Time Act does not allow a mechanism to recover an over-time payment as submitted by the Complainant.

In this regard, the heading of the complaint states that, “I did not receive my paid holiday / annual leave entitlements”.

Section 19(1) of the Organisation of Working Time Act provides that,

“…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)”

Part three (which includes Section 19 above) of the Organisation of Working Time Act 1997 was enacted to give effect to Article 7 of the European Union Working Time Directive 93/104/EC.

This Article provides that,

“(1) Member States shall take the measures necessary to ensure that every worker is entitled to paid leave of at least four weeks in accordance with the conditions of entitlement to, and the granting of, such leave laid down by national legislation and/or practice.

(2) The minimum period of annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated.”

In the matter of Kvaerner Cementation (Ireland) Limited v Martin Treacy DWT017, the Labour Court stated that,

“What emerges from these statutory provisions is that:1. The primary obligation on an employer is to ensure that employees receive the requisite period of paid leave.2. That obligation cannot be offset by payment of an allowance in lieu of such leave.3. The obligation is imposed for the protection of the health and safety of workers.”

In the more recent case of Terveys-Ja Sosiaalialan Neuvottelujargesto (TSN) ry v Hyvinvointialan liito Ri C-609/17 and C-610/17, (referred to hereafter as “TSN”) the CJEU held that,

“…rights to paid annual leave thus granted beyond the minimum required by Article 7(1) of Directive 2003/88 are governed not by that directive, but by national law, outside the regime established by that directive”

In the matter of Tapastreet Limited -v- Joseph Mitchell WTC/16/87 the Labour held that a complaint under Section 19(1) above related to the non-payment of statutory annual leave as set out above. In that particular matter, the Court held that once a Complainant had received their statutory entitlement, no claim arose under Section 19(1) regarding a contractual agreement in excess of the same.

Having regard to the foregoing authorities, I find that the claim under Section 19(1) relates to the Complainant’s statutory annual leave entitlements only.

In the matter of A Facilities Co-ordinator -v- A Bakery ADJ-00019188, the Adjudicator considered the question of how to classify leave taken prior to the lodgement of the claim, and whether the same can be classified as statutory or contractual leave. In that case, the Complainant annual leave entitlement comprised of twenty days arising from the Organisation of Working Time Act (and by extension, the Directive) in addition to four additional days arising from his contract of employment. In circumstances whereby both sources of leave were simply classified as “annual leave” with no differential between the source of the same, the Adjudicator found that the Complainant was entitled to 20/24ths of this outstanding leave, as this related to the apportionment of his statutory to contractual entitlements.

Having considered the particular circumstances of this case, I find that such an apportionment is not applicable. The Respondent’s records clearly differentiate between leave that emanates from statute (referred to as annual leave) and leave that emanates from a contractual entitlement (referred to as “time in lieu”). The Complainant’s own submission reflects such a differencation, with different headings for time taken as annual leave and time taken in lieu. Having regard to the foregoing, it is apparent that the Complainant was aware of what days were annual leave (i.e. his statutory entitlement) and what days were time in lieu (i.e. his contractual entitlement).  As set out above, the days that emanate from the contractual entitlement fall outside the scope of the Act, and the Complainant’s case can relate to the non-payment of statutory leave only.

The Complainant stated that near the outset of his employment he was informed that overtime payments would be processed as time in lieu. He further submitted that from the outset of his employment, and particularly during 2019, the hotel was busy and he was unable to take either his annual leave or the time in lieu that had accrued. The Complainant submitted that he gained access to his working time records as he had managerial access to the time recording system in order to create rosters when the head chef was absent. When he went to management to discuss this outstanding leave, management refused to honour the agreement made with the general manager the year previous, this point the manager in question had left the business.

Following the hearing the Complainant broke this entitlement down as 58.5 hours of outstanding annual leave from 2018 and 34 hours of unpaid annual leave from 2019. The Complainant also calculated that he was entitled to 600 hours in unpaid time in lieu. The Complainant also submitted that he was not correctly paid for public holidays.

Notwithstanding the preliminary issues raised above, the Respondent stated that the Complainant had been compensated for all statutory and contractual payments.

In answering the specifics of the claim, they submitted that they had during the currency of the Complainant’s employment they utilised two separate time management systems.  During 2019, it became apparent that the first of these systems was recording hours incorrectly and creating an excess of hours owed to particular employees. When this issue was identified the Respondent began using an alternative time-recording system, which they submitted correctly and accurately recorded the Complainant’s hours and entitlements. The Respondent submitted that the Complaint had sight of the records created from the previous system as he had access to the system when the head chef was absent. The records from this previous system may have demonstrated that the Complainant was due more hours than he was entitled to, however the correct records from the second system demonstrate that this is not the case. In direct evidence, the HR manager of the Respondent stated that she issued correspondence to all managers informing them of this issue and advising that the system was not to be used. In answer to the question the HR manager accepted that the Complainant may not have had sight of this document.

Regarding the Complainant’s annual leave entitlement, the Respondent stated that the Complainant received 15.75 of his 20 days entitlement in 2019. Given that their leave year runs from January to December, the Complainant was permitted to carry-over the remainder of these days, which were taken in early 2020. They submitted that on the date of the lodgement of the Complainant, the Complainant had not completed the leave year and no breach in respect of 2020 had accrued.

In summary the Respondent denied that the Complainant was entitled to any statutory or contractual payments and that his full entitlement had been taken by the date of the hearing.

As set out above, the consignable period for the purpose of this claim is 23rd August 2019 to 23rd February 2020. Whilst, I note that the employer’ leave year runs from January to December, Section 2 of the Act provides that the statutory leave year commences on 01st April and ends on 31st March the following year.

In the matter of Waterford County Council v O’DonoghueDWT0963, the Labour Court stated that,

“The only leave year which is cognisable for the purpose of determining if an employee received his or her statutory entitlement is that prescribed by the Act itself, that is to say a year starting on 1st April and ending on 31st March the following year. While different arrangements may be put in place for administrative purposes, in determining if a contravention of the Act occurred that Court can only have regard to the leave allocated to an employee in the statutory period.”

In Singh & Singh Ltd and Guatam DWT0544 the Labour Court held, relying on the decision of Lavan J in Royal Liver v Macken [2002] 4 IR 428, that,

“From this judgement it is clear that where an employer fails to provide an employee with the requisite amount of paid annual leave the contravention of the act occurs at the end of the leave year to which the leave relates.” 

In the present case, the complaint in respect of unpaid annual leave accrued in 2018 / 2019 crystallised on 31st March 2019. However, it should be noted that Section 20(1)C permits annual statutory annual leave to be taken within six months of the end of the statutory leave year with the consent of the employee. Given that both parties have relied on the carry over of annual leave in their submissions, it is clear that such consent existed in this case.

The case then relates to whether the Complainant received his statutory entitlement days annual leave in the leave year 2018-2019, and if he did not, did he receive same within six months of the expiry of the same, or by 31st September 2019. Regarding the calculation of said statutory entitlement I note the Complainant commenced employment on 6th August 2018, and had been employed for 33 full weeks by the 31st March 2019. Given that the Complainant was engaged in a standard weekly working week of 39 hours, he had accrued 1,287 hours by the 31st March. Section 19(1)(a) provides that an employee is entitled to four weeks of annual leave in the event that he accrued 1,365 hours within the leave year. Given that the Complainant did not reach this threshold, his entitlement is calculated by virtue of Section 19(1)(c), or 8 per cent of the hours worked within the leave year. Based on the calculation above, the Complainant accrued a statutory entitlement of 102.96 hours, or almost 13 days, of annual leave in the relevant period.

The Complainant’s payslips demonstrate that the Complainant availed of 5 days of annual leave from the commencement of his employment until the end of the leave year. By the end of the following six months, the Complainant had received a further 11 days of annual leave. In the circumstances, it is apparent that the Complainant received 16 of 13 days annual leave within the consignable period. Having regard to the same, I find that his complaint is not well founded and find in favour of the Respondent.   

Section 27 of the Act requires that I make a decision in relation to this complaint. In the circumstances I find that the complaint is not well founded and I find in favour of the Respondent.  

Contractual Annual Leave, Time in Lieu, TSN