ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00032324

Parties:

	Complainant	Respondent
Parties	Eamonn Coughlan	Carlow County Council

	Complainant	Respondent
Parties	Eamonn Coughlan	Carlow County Council

Representatives

Ger Malone SIPTU

Eamonn Brophy

Complaint(s):

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-00042933-001	08/03/2021
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00042933-002	08/03/2021

Date of Adjudication Hearing: 26/05/2021

Workplace Relations Commission Adjudication Officer: Brian Dalton

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The claimant is employed as a driver/plant operative. The post includes payment of weekly regular and rostered overtime of 5 hours per week, 2.5 hours are paid at time and half which is €62.85 per week and 2.5 hours paid at double time which is €83.62 per week. In addition, he receives an onsite allowance of €1.90 per day=€9.50 per week and is on call one in 6 weeks and is paid €80.62 for that week which amounts to €13.46 per week. The normal weekly pay is €823.41. There is no dispute that the regular and rostered overtime and allowances should have been included in the calculation of annual leave. The dispute concerns how far the retrospection should apply. However, the complainant is seeking a declaration that annual leave payments should be based on normal weekly pay including rostered overtime and that public holiday pay should be based on fifth of normal weekly pay.

Summary of Complainant’s Case:

The complainant states that the claim relates to the non-inclusion of 5 hours of regular and rostered overtime per week; an on-site allowance and an on-call payment that re-occurs every 6 weeks. However, his holiday pay is calculated on basic hours only which equates to €653.83 per week. While his normal weekly pay including rostered overtime hours and the other payments amount to weekly pay of €823.41 per week which means a shortfall in holiday pay of €169.58 which is a 25% shortfall based on basic pay. This amounts to a serious breach of the Organisation Working Time Directive and the responsibility placed on the employer to pay the correct amount of annual leave entitlement. The right to the correct amount of paid annual leave is a social right that must be complied with. Underpayment cannot be expunged by time and continues to accrue to the employee as determined by the Court of Justice in Sash Window Ltd v King (2018) IRLR 142.

Normal weekly pay is €823.41,

Basic pay for 78 hours fortnight = €1307.66= €16.76 per hour or €656.64 per week.

Based on a 39-hour week, the normal hourly rate is €21.11.

The difference between the basic hourly rate and the normal hourly rate is €4.35.

The complainant is entitled to 25 annual leave day per year, which means that the total shortfall is €870 per year excluding public holidays.

The 9 public holidays amounts to a loss of €313.20 per year.

The complainant commenced in 1999 and has been working regular and rostered overtime since then and has had various allowances over the years. He calculates that his loss runs for 21.5 years.

He estimates an annual loss of €1,183.20 per annum or €25438.80 for the 21.5-year period.

The complainant opened and relied on the following Court of Justice of the European Union jurisprudence and relevant Northern Ireland case that also applied European Law:

1. Sash Window Workshop Ltd v King (2018) IRLR 142

2. Lock v British Gas Trading Ltd (2014) ICR 813

3. Chief Constable of the Police Service of Northern Ireland & Anor v Agnew (2019) NICA 32

And that these cases have determined that the right to paid annual leave must be considered a particularly important principle of European Union social law. The Charter of Fundamental Rights also affirms the right to paid annual leave at Article 31(2) and which at Article 6(1) of the TEU recognises as having the same legal value as the Treaties.

Any practice that deters an employee from taking their paid annual leave is incompatible with the Directive. Not to include rostered overtime and other allowances linked to normal weekly pay undermines the purpose of the directive which is “the improvement of workers safety…and health is an objective which should not be subordinated to purely economic considerations”.

Excluding core components of normal remuneration deters an employee from taking their full statutory annual leave. To exclude core elements from paid holiday entitlement and only to calculate such entitlement on what is termed basic 39 contractual hours seriously undermines the social right to paid annual leave and the overriding purpose of the Directive.

Summary of Respondent’s Case:

The first occasion the respondent became aware of the issue was when the complaint was sent to them by the Workplace Relations Commission on the 22nd of February 2021. The Council accepts that regular and rostered overtime should be calculated in holiday pay in accordance with the Organisation Working Time Act 1997(The Act). The Council believe that a retrospective claim for 21.5 years stretches the bounds of reasonableness and believes that retrospection should be for 2 calendar years from the date of claim.

Findings and Conclusions:

The Act at Article 7 states:

Article 7

Annual leave

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

The claimant is seeking retrospection concerning annual contractual entitlement for 25 days, while the Act relates only to statutory annual leave of 20 days.

Section 19 of the Act states that holiday entitlement is:

19.— (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 20 of the Act states:

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—

(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’s pay determined in accordance with regulations made by the Minister for the purposes of this section.

The regulation relevant for determining the normal weekly rate of the employee is S.I 475 of 1997:

3. (1) The normal weekly rate of an employee's pay, for the purposes of sections 20 and 23 of the Act (hereafter in this Regulation referred to as the "relevant sections"), shall be determined in accordance with the following provisions of this Regulation.

(2) If the employee concerned's pay is calculated wholly by reference to a time rate or a fixed rate or salary or any other rate that does not vary in relation to the work done by him or her, the normal weekly rate of his or her pay, for the purposes of the relevant sections, shall be the sum (including any regular bonus or allowance the amount of which does not vary in relation to the work done by the employee but excluding any pay for overtime) that is paid in respect of the normal weekly working hours last worked by the employee before the annual leave (or the portion thereof concerned) commences or, as the case may be, the cesser of employment occurs.

(3) If the employee concerned's pay is not calculated wholly by reference to any of the matters referred to in paragraph (2) of this Regulation, the normal weekly rate of his or her pay, for the purposes of the relevant sections, shall be the sum that is equal to the average weekly pay (excluding any pay for overtime) of the employee calculated over—

(a) the period of 13 weeks ending immediately before the annual leave (or the portion thereof concerned) commences or, as the case may be, the cesser of employment occurs,

(b) if no time was worked by the employee during that period, over the period of 13 weeks ending on the day on which time was last worked by the employee before the annual leave (or the portion thereof concerned) commences or, as the case may be, the cesser of employment occurs.

Public Holiday calculations are defined by section 5 of the Regulations:

( a ) in case the employee's pay is calculated wholly by reference to any of the matters referred to in Regulation 3(2) of these Regulations, the relevant rate in respect of that public holiday shall be the sum that is equal to the sum (including any regular bonus or allowance the amount of which does not vary in relation to the work done by the employee but excluding any pay for overtime) paid to the employee in respect of the normal Daily hours last worked by him or her before that public holiday,

(b) in any other case, the relevant rate in respect of that public holiday shall be the sum that is equal to the average Daily pay (excluding any pay for overtime) of the employee calculated over—

(i) the period of 13 weeks ending immediately before that public holiday,

(ii) if no time was worked by the employee during that period, the period of 13 weeks ending on the day on which time was last worked by the employee before that public holiday.

Section 21 of the Act relates to Public Holiday entitlement:

21.— (1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—

(a) a paid day off on that day,

(b) a paid day off within a month of that day,

(c) an additional day of annual leave,

(d) an additional day’s pay:

The Act relates to statutory annual leave which is 4 weeks or 20 days and 9 Public Holidays as detailed at schedule 2 in the Act. The claim to calculate normal weekly pay based on the contractual entitlement of 25 annual leave days is not referenced as a right in the Act, rather statutory leave only of 20 annual holidays and 9 public holidays.

However, the employer does concede that annual leave payments should be based on normal weekly pay and that public holiday pay should be based on 1 fifth of normal weekly pay.

What is the definition of normal weekly rate in this case? The Regulation at section 2 states If the employee concerned’s pay is calculated wholly by reference to a time rate or a fixed rate or salary or any other rate that does not vary in relation to the work done by him or her, the normal weekly rate of huis or her pay…shall be the sum (including any regular bonus or allowance the amount of which does not vary in relation to the work done by the employee but excluding any pay for overtime) that is paid in respect of the normal weekly working hours last worked by the employee before the annual leave ( or the portion thereof concerned) commences or, as the case may be, the cesser of employment occurs.

Section 2 applies to the complainant as he is paid a time rate that doesn’t vary in relation to the work done by him. However, the section specifically excludes overtime, the question I must ask does this reference to overtime relate to rostered overtime and so exclude the right to payment of 5 hours rostered overtime payment as already detailed.

In Lock v British Gas Trading Ltd [2014] ICR 813 the CJEU stated:

24. The general rule laid down by the court with regard to remuneration comprising several components is that, although the structure of the ordinary remuneration of a worker is determined, as such, by the provisions and practices governed by the law of the member states, that structure cannot affect the worker’s right to enjoy, during his period of rest and relaxation, economic conditions which are comparable to those relating to his employment.

25. Applying that general rule, the court held that any inconvenient aspect linked intrinsically to the performance of the tasks the worker is required to carry out under his contract of employment and in respect of which a monetary amount is provided which is included in the calculation of the workers remuneration, such as, in the case of airline pilots, the time spent flying, must necessarily be taken into account for the purposes of the amount to which the worker is entitled during his annual leave.

26. By contrast, according to the court (in British Airways plc v Williams (Case C-155/10) [2012], the components of worker’s total remuneration which are intended exclusively to cover occasional or ancillary costs arising at the time that pilots have to spend away from base, need not be taken into account in the calculation of the payment to be made during annual leave; Williams para 25.

27. The existence of an intrinsic link between the various components making up the total remuneration of the worker and the performance of the tasks he is required to carry out under his contract of employment, would seem, therefore, to be a decisive criterion for including those various components in the remuneration payable to the worker during his paid annual leave. The various allowances a worker may claim during paid annual leave must therefore not only be directly linked to the performance of the tasks he is required to carry out under his contract of employment, but also have a certain degree of permanence.

It is important to note that the respondent is not arguing that these payments shouldn’t be included, rather that the retrospection should be limited to 2 years. While the parties have agreed on this point; it is based on both parties accepting that the Court of Justice had determined that such payments should be included. Based on the referenced case law I also concur with this view, as rostered overtime is a contractual requirement, has a degree of permanence and that there is an intrinsic link to the tasks required under the complainant’s contract and the performance of the tasks that he is required to carry out. The on- call payment is also intrinsically linked to his contract to make himself available and has a degree of permanence and therefore this payment also must be included in the calculation for annual leave entitlement(but not for Public Holidays which are governed by National Law statutory provisions and exclude overtime but not allowances). The smaller onsite payment is also a permanent feature of the contract and should also be included.

The Court determined in Hein v Albert Holzkamm Gmbh (C-385/17), [2018] 12 WLUK 184, that a worker should receive normal pay as holiday pay. The Court observed that it “has already stated that the term ‘paid annual leave’ in Article 7(1) of Directive 2003/88 means that for the duration of the annual leave, remuneration must be maintained and that workers must receive their normal remuneration for that period of rest.

Therefore, reference to overtime and its exclusion under S.I. No. 475/1997 based on the jurisprudence of the Court of Justice refers to a payment that is not permanent, arises occasionally, is not a task intrinsically linked to the contract that requires the employee to work the hours. Such overtime must be distinguished from regular rostered overtime that are a normal pattern of the working week every week.

In Chief Constable of the Police Services of Northern Ireland and Northern Ireland Policing Board v Alexander Agnew and others [2019] NICA 32 stated at paragraph 22 when citing Sash Window Workshop Lt v King [2018] IRLR 142 that the right to paid annual leave is expressly set out in Article 31(2) of the Charter, which Article 6(1) TEU recognises as having the same legal value as the Treaties.

In Sash the following questions were referred to the CJEU:

24 In those circumstances, the Court of Appeal of England and Wales (Civil Division) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

(1) If there is a dispute between a worker and employer as to whether the worker is entitled to annual leave with pay pursuant to Article 7 of Directive 2003/88, is it compatible with EU law, and in particular the principle of effective remedy, if the worker has to take leave first before being able to establish whether he is entitled to be paid?

(2) If the worker does not take all or some of the annual leave to which he is entitled in the leave year when any right should be exercised, in circumstances where he would have done so but for the fact that the employer refuses to pay him for any period of leave he takes, can the worker claim that he is prevented from exercising his right to paid leave such that the right carries over until he has the opportunity to exercise it?

(3) If the right carries over, does it do so indefinitely or is there a limited period for exercising the carried-over right by analogy with the limitations imposed where the worker is unable to exercise the right to leave in the relevant leave year because of sickness?

(4) If there is no statutory or contractual provision specifying a carry-over period, is the court obliged to impose a limit to the carry-over period in order to ensure that the application of the national legislation on working time does not distort the purpose behind Article 7?

(5) If the answer to the preceding question is yes, is a period of 18 months following the end of the holiday year in which the leave accrued compatible with the right set out in Article 7 [of Directive 2003/88]?’

In relation to questions 2 to 5 the CJEU determined:

65 It follows from all the foregoing considerations that the answer to the second to fifth questions is that Article 7 of Directive 2003/88 must be interpreted as precluding national provisions or practices that prevent a worker from carrying over and, where appropriate, accumulating, until termination of his employment relationship, paid annual leave rights not exercised in respect of several consecutive reference periods because his employer refused to remunerate that leave.

In this case the complainant has not received paid annual leave rights that should have been paid to him when he was on annual leave . The right to annual leave pay based on the normal weekly rate accrues until the termination of employment as determined in Sash at paragraph 65.

In Agnew the Court of Appeal also stated at para 24:

However, as we have indicated we do not consider that the lack of action on behalf of the claimants affects their claims. The obligation is on the employer to seek all information.

The respondent’s view that the period of limitation should be narrowed to 2 years, is not consistent with CJEU jurisprudence as in Sash at para 65 the Court stated: Article 7 of Directive 2003/88 must be interpreted as precluding national provisions or practices that prevent a worker from carrying over and, where appropriate, accumulating, until termination of his employment relationship, paid annual leave rights not exercised in respect of several consecutive reference periods because his employer refused to remunerate that leave. It would not logically follow that because a complainant is currently employed that their rights under the Directive would be lesser or not of equal weight. Therefore, it must follow that the right to paid annual leave based on normal weekly pay accrues over consecutive periods and that national practices are precluded from preventing a worker to carry over and accumulating paid annual leave rights not exercised, because his employer has failed to pay that leave appropriately. To hold the opposite would fundamentally undermine the importance given to the right to paid annual leave as prescribed in the Directive and Charter of Fundamental Rights and the legal value and status of that right in European Law.

Section 41(6) of the Workplace Relations Act 2015 states:

(6) Subject to subsection (8), 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.

Therefore consistent with the Court of Justice of the European Union in Sash relating to the right of accrual that is not limitedand Dominguez du Centre Ouest Allantique [2012] 2.C.M.L.R 14 concerning the obligation to find a compatible interpretation of national law that complies with Community Law; the above provision that limits an action as it applies to paid statutory leave as a social right underpinned by the Directive and in the Charter and CJEU jurisprudence; only begins to run when the employment contract ceases. In other words, if the employment contract continues and by omission or design the employer does not properly remunerate the employee for annual leave based on normal weekly pay; Article 7 of Directive 2003/88 must be interpreted as precluding national provisions or practices that prevent a worker from carrying over and, where appropriate, accumulating, and at para 39 in Sash the Court of Justice stated:

Similarly, such circumstances are liable to dissuade the worker from taking his annual leave. In that regard, it must be noted that any practice or omission of an employer that may potentially deter a worker from taking his annual leave is equally incompatible with the purpose of the right to paid annual leave (see, to that effect, judgment of 22 May 2014, Lock, C‑539/12, EU:C:2014:351, paragraph 23 and the case-law cited).

For these reasons the right to payment based on normal weekly pay cannot be expunged but accrues; accumulates and carries over where not paid.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00042933-001

Article 7 states:

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

It is important to note that the respondent is not arguing that rostered overtime and regular allowances shouldn’t be included in the calculation of annual leave entitlement, rather that the retrospection should be limited to 2 years. The parties have agreed on what should comprise normal weekly pay based on the jurisprudences of the Court of Justice that such payments should be included. Based on the referenced case law I also concur with this view with regard to statutory leave of 4 weeks, as rostered overtime is a contractual requirement, has a degree of permanence and that there is an intrinsic link to the tasks required under the complainant’s contract and the performance of the tasks that he is required to carry out. The on-call payment is also intrinsically linked to his contract to make himself available and has a degree of permanence and therefore this payment also must be included in the calculation for holiday entitlement. The smaller onsite payment is also a permanent feature of the contract and should also be included.

Therefore, reference to overtime and its exclusion under the national regulation S.I. No. 475/1997 based on the jurisprudence of the Court of Justice for the purpose of annual leave entitlement refers to overtime that is not rostered; that is not permanent, arises occasionally, is not a task intrinsically linked to the contract that requires the employee to work. Such overtime must be distinguished from regular rostered overtime that forms part of normal weekly pay and remuneration.

Normal weekly pay for the purpose of calculating annual leave consists of basic hours and the following: 5 hours rostered overtime per week which amount to 2.5 hours paid at time and half = €62.85 per week and 2.5 hours paid at double time=€83.80 per week. An onsite allowance of €9.50 per week and an on-call payment that amount to €13.43 weekly. Basic pay for 39 hours amounts to €653.83 and normal weekly pay = basic pay of €653.83 + rostered hours weekly payment of €146.65 per week + on site allowance of €9.50 per week+ on call payment that amounts to is €13.43 per week. The total amounts to €169.58.

Normal weekly pay therefore amounts to basic weekly pay of €653.83 and €169.58= €823.41

The weekly under payment in statutory annual leave holiday pay is €169.58 and that amount accrues effective from the commencement of the Directive into Irish Law. However, it only applies to statutory annual leave of 4 weeks. This means that in the relevant calendar year the underpayment is calculated as 4 weeks x by the shortfall in normal remuneration which is €169.58 or €678.32 per leave year.

Decision:

I have determined that the claim is well founded that annual leave payments should be based on normal weekly pay as opposed to basic pay and that the shortfall that accrues per leave year is €678.32.

In this case the complainant has not received paid annual leave rights that should have been based on the normal weekly rate and such rights accrue until the termination of employment. This decision is consistent with Sash at para 65.

In Agnew the Court of Appeal also stated at para 24:

However, as we have indicated we do not consider that the lack of action on behalf of the claimants affects their claims. The obligation is on the employer to seek all information.

The respondent’s view that the period of limitation should be narrowed to 2 years, is not consistent with CJEU jurisprudence as in Sash at para 65 the Court stated: Article 7 of Directive 2003/88 must be interpreted as precluding national provisions or practices that prevent a worker from carrying over and, where appropriate, accumulating, until termination of his employment relationship, paid annual leave rights not exercised in respect of several consecutive reference periods because his employer refused to remunerate that leave. It would not logically follow that because a complainant is currently employed that their rights under the Directive would be lesser or not of equal weight. Therefore, it must follow that the right to paid annual leave based on the normal weekly rate of pay accrues over consecutive periods and that national practices are precluded from preventing a worker to carry over and accumulating paid annual leave rights not exercised, because his employer has failed to remunerate that leave appropriately. To hold the opposite would fundamentally undermine the importance given to the right to paid annual leave as prescribed in the Directive and Charter of Fundamental Rights and the legal value and status of that right in European Law.

Section 41(6) of the Workplace Relations Act 2015 states:

Therefore consistent with the Court of Justice of the European Union in Sash relating to the right of accrual that is not limitedand Dominguez du Centre Ouest Allantique [2012] 2.C.M.L.R 14 and the obligation to find a compatible interpretation of national law that complies with Community Law; the above provision as it applies to paid statutory annual leave as set out in the Directive and the Organisation Working Time Act; means that the contravention in this case arises when the employment contract ceases and outstanding accrued holiday payments remain unpaid. In other words, if the employment contract continues as Article 7 of Directive 2003/88 must be interpreted as precluding national provisions or practices that prevent a worker from carrying over and, where appropriate, accumulating, and at para 39 in Sash the Court of Justice stated:

CA-00042933-002

Public Holiday entitlement is not guaranteed as a social right under the Working Time Directive or in the Charter of Fundamental rights. This means that national provisions govern how public holiday entitlement should be calculated. Those provisions state in regulation S.I. 475 of 1997:

Therefore to make a declaration that Public Holiday Pay should be based on 1/5th of normal weekly pay if that included overtime is not consistent with national statutory provisions.

However, in this case the employer concedes that Public Holiday should be calculated on normal weekly pay to include rostered overtime and allowances and also referenced a period of time that it would apply for. It is up to the parties themselves to agree if minimum statutory provisions should be enhanced.

Section 27(3) of the Act provides:

(3) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely:

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employees’ employment.

I declare that CA-00042933-001 is well founded and that annual leave should be based on the normal weekly rate of an employee’s pay for the purposes of section 20(2) of the Act:

(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

shall be determined to include rostered overtime; the onsite allowance and the on- call payment which amounts to €823.41 per week.

I determine that CA-00042933-02 is not well founded as it seeks a declaration that public holidays should include rostered overtime.

CA-00042933-01 Declaration:

I declare that the respondent employer is required to calculate statutory holiday pay of 4 weeks based on the normal weekly rate that includes rostered overtime, the onsite allowance, and the on-call payment.

The claimant claims the underpayment based on contractual leave of 25 annual leave days per year with a calculated loss of €34.80 per day and that the annual leave shortfall amounts to €870 per annum and 9 Public Holidays amounts to €313.20 per annum= €1.183.20 per annum.

I determine that the annual leave shortfall should be based as follows: 4 weeks shortfall which is a weekly shortfall of €169.58 (normal weekly rate of pay €823.41-weekly basic pay of €658.83) = annual leave shortfall of €678.32.

The total annual leave underpayment is €678.32. Based on the jurisprudence of the Court of Justice of the European Union, right accrues from the commencement of employment. The complainant commenced his employment on the 6th of June 1999 and claims 21.5 years. Based on the evidence the underpayment for the 4 weeks of statutory annual leave is 21.5 years x €678.32 = €14,583.88

The employer has failed to pay the correct normal weekly pay in advance. Based on the jurisprudence of the European Court of Justice, the right to normal weekly pay, cannot be expunged or limited to a specific timeframe when it arises due to the omission or failure of the employer. To do so would limit the right of the employee guaranteed under the Working Time Directive and the Charter of Fundamental Rights.

I require the respondent to pay compensation of €14,600 arising from the underpayment of annual leave entitlement based on the normal weekly rate. This amount in full and final payment of all outstanding retrospection as of the date of hearing and the evidence presented quantifying the loss at that date. As of that date no past liabilities accrue concerning the underpayment of normal weekly pay on payment by the employer of the award.

Dated: 10th August 2021

Workplace Relations Commission Adjudication Officer: Brian Dalton

Key Words: Normal Weekly Rate of Pay; Time Limits; Annual Leave; Public Holiday