Complainant

Respondent

Parties

Denis Ryan

Wallace Travel & Transport  Services Ltd

Representatives

  Self Represented

 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-00042048-001

19/01/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00042048-002

19/01/2021

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.

An affirmation was administrated to the Complainant who gave evidence at the hearing in accordance with the Workplace Relations (Miscellaneous Provisions) Act 2021.

The Complainant was employed by the Respondent as a part time bus driver and earned a monthly wage of between €800 - €1,000 and worked approximately 25 hours a week. He provided a payslip which showed a basic gross wage of €900.

He submitted his complaint to the Workplace Relations Commission on 19 January 2021 under the Organisation of Working Time Act 1997. He claims that he did not receive a paid holiday / annual leave entitlement or his public holiday entitlement.

The Complainant commenced employment on 02 January 2013 and worked with the Respondent on a part time basis over the school term until the Covid19 pandemic hit on 12 March 2020. He was then put on lay off but was not entitled to any financial assistance from the Dept of Social Protection during this period as he was in receipt of a pension. The Complainant continued to be employed by the Respondent until he handed in his notice on 22 July 2020.

CA-00042048-001

The Complainant gave evidence that he never received annual leave or “holiday pay” at any time he was employed by the Respondent. He gave evidence that he did discuss it with Mr Wallace some time at the beginning of their working relationship, but Mr Wallace said part time employees did not receive holiday pay. The Complainant accepted this at the time.

Upon enquiry at the hearing , the Complainant stated he never took annual leave during the school term but when the schools were closed he would not get paid. He used the example of the Christmas holidays when he did not receive any payment.

The Complainant stated he never received a contract of employment from the Respondent.

CA-00042048-002

The Complainant listed 7 public holidays in the school term that he would have been employed by the Respondent; October, Christmas Day, St Stephen’s Day, New Years Day, Easter Monday, May and June. He gave evidence that he never received payment or time off in lieu of these public holidays. He gave the example of the October public holiday and if that fell on a Monday he would only get paid for 4 of the 5 days worked. This was the case for each of the other public holidays.

The Respondent was in contact was the Workplace Relations Commission in response to this complaint. I am satisfied that he was on notice of this hearing.

On the day of the hearing the Respondent, Mr Wallace , was contacted again. He advised he would not be attending the hearing as he was en route to the airport.

CA-00042048-001

Section 19 of the Organisation of Working Time Act 1997 provides for annual leave:

“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):”

Section 20 (2) provides:

“(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,”

CA-00042048-002

Section 21 (1) in respect of public holiday entitlements provides:

“(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:

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.”

Section 22 (1) provides:

“The rate—

(a) at which an employee is paid in respect of a day off under section 21 , and

(b) of an employee's additional day's pay under that section,

shall be such rate as is determined in accordance with regulations made by the Minister for the purposes of that section.”

Section 23 discusses the procedure when employee ceases to be employed:

“23.—(1) Where—

(a) an employee ceases to be employed, and

(b) the whole or any portion of the annual leave in respect of the current leave year or, in case the cesser of employment occurs during the first half of that year, in respect of that year, the previous leave year or both those years, remains to be granted to the employee, the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave.

(2) Where—

(a) an employee ceases to be employed during the week ending on the day before a public holiday, and

(b) the employee has worked for his or her employer during the 4 weeks preceding that week,

the employee shall, as compensation for the loss of his or her entitlements under section 21  in respect of the said public holiday, be paid by his or her employer an amount equal to an additional day's pay calculated at the appropriate daily rate.”

Redress is provided for under Section 27 (3) of the Act:

A decision of a rights commissioner under subsection (2) shall do one or more of the following:

(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 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.

Complaints are time limited which is provided for under Section 27 (4) of the Act

“(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.”

The first issue to address is the time limit imposed by the legislation on such complaints. The Complainant began his employment in 2013 and gave evidence he never received a public or annual leave payment. He was on lay off due to the Covid19 Pandemic from 12 March 2020 but did not give notice of his termination of employment until 22 July 2020 with the complaint form being submitted on 19 January 2021.

The Complainant gave evidence that he ought to have received his annual leave and public holiday entitlement upon cessation of his employment in July 2020 thereby relying on Section 23 of the Act.

Taking the annual leave year as running from September to June which is aligned with the school term, it is his claim that in July 2020 he ought to have received his payment upon termination of his employment in July 2020. As the Complainant was on lay off from 12 March 2020 he did not accrue annual leave entitlement from that date until the date of termination. Consequently, I find that the complaint is within time.

The evidence of the Complainant was clear. The Respondent choose not to attend the hearing and rebut the evidence presented. Consequently, I accept the evidence of the Complainant that he did not receive annual leave or public holiday entitlements for the entirety of his employment contrary to the Organisation of Working Time Act 1997.

CA-00042048-001

Having heard the Complainant’s uncontradicted evidence , I declare the complaint is well founded and award the Complainant compensation in the sum of €1,800 representing two month’s salary for breach of the Act in relation to annual leave.

CA-00042048-002

Having heard Complainant’s uncontradicted evidence, I declare the complaint is well founded. I award the Complainant compensation in the sum of €900 representing one month’s salary for breach of the Act in relation to public holidays.

Annual Leave – Public Holiday – Time Limit – Well Founded