Complainant

Respondent

Anonymised Parties

A Bar Manager

A Night Club

Representatives

Daniel Snihur , Independent Workers Union

 No Appearance

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-00032224-001

15/11/2019

The Complainant worked with the Respondent from 2010 until 12 November 2019 as a Bar Manager. The Complainant resigned from his position following his demotion as a result of an internal investigation. 

The claim was submitted on 15 November 2019 to the Workplace Relations Commission.

The Complainant was paid €12 per hour and worked 39 hours per week.

As this is a claim under the Organisation of Working Time Act 1997 the burden of proof rests with the Respondent.

Extension of Time

An extension of time was sought to a period of 12 months from November 2019 on the basis the Complainant was focused on the other complaint before the WRC and given the behaviour of the Respondent.

Organisation of Working Time Act 1997

It was submitted on behalf of the Complainant that he worked without annual leave in in 2019 and only took 5 annual leave in 2018. He confirmed he did have a contract of employment and he was entitled to the statutory annual leave entitlement of 20 days. 

The Complainant was on sick leave from 15 February 2019 to the date he terminated his employment on 12 November 2019. 

On 20 November 2020, the Complainant wrote to the Respondent seeking an explanation as to why he was paid one hours pay of €12 in his final payslip.

By response dated 27 November 2020, the Respondent stated that, “it felt it was fair and reasonable to withhold payment of annual leave until such time as the Garda investigation is complete”. It was argued that this is evidence that the Respondent accepts it is withholding the annual leave entitlement without just cause.

The Respondent sought a postponement which was refused. Subsequently, by email dated 30 November 2020, the Respondent refused to attend the hearing of this claim on the basis that there was a third-party investigation taking place.

Extension of Time

Section 27 of the Organisation of Working Time 1997 sets out the time limits for presentation of claims:

“(4) A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

(5) Notwithstanding subsection (4), a rights commissioner may entertain a complaint under this section presented to him or her after the expiration of the period referred to in subsection (4) (but not later than 12 months after such expiration) if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause.”

The test for an extension of time is one of reasonable cause. In this case where the Complainant was professionally represented at all times, submitted his claim to the WRC in a timely manner after he resigned from his position and in the absence of being presented with a sufficient argument as to why time should be extended, I am refusing this request.

The cognisable period for this claim dates from 14 May 2019 and ends on the date of submission of the claim to the WRC on 15 November 2019. The Complainant was on certified sick leave from 15 February 2019 until his date of termination.

Annual Leave

The Organisation of Working Time Act 1997 as amended by s. 86 of the Workplace Relations Act 2015 provides for the accrual of annual leave during certified sick leave:

“(1A) For the purposes of this section, a day that an employee was absent from work due to illness shall, if the employee provided to his or her employer a certificate of a registered medical practitioner in respect of that illness, be deemed to be a day on which the employee was—

(a) at his or her place of work or at his or her employer’s disposal, and

(b) carrying on or performing the activities or duties of his or her work.”

The Respondent did not attend to defend the case. Consequently, the Respondent failed to discharge the burden of proof.

Having heard the evidence of the Complainant together with the letters of 20 November 2019 and the Respondent’s reply on 27 November 2019 which expressly details its refusal to pay the Complainant his annual leave which was due, I find the complaint is well founded.

Section 27 (3) (c) of the Organisation of Working Time 1997 allows for the following redress:

“(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the employee's employment, and the references in the foregoing paragraphs to an employer shall be construed, in a case where ownership of the business of the employer changes after the contravention to which the complaint relates occurred, as references to the person who, by virtue of the change, becomes entitled to such ownership.”

Where I have found the claim is well founded, I award the Complainant the sum of €2,000 in compensation for the breach of the Organisation of Working Time Act 1997 as being just and equitable in the circumstances.

Organisation of Working Time Act – No Appearance on behalf of Respondent – Failure to attend- Application for Extension of Time – Annual leave – Well founded claim.