Complainant

Respondent

Anonymised Parties

General Manager

Hotel

Representatives

Gaffney Solicitors

none 

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-00035874-001

27/04/2020

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

CA-00035874-002

27/04/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00035874-003

27/04/2020

The complainant worked as a General Manager for the respondent in a hotel in the south west of Ireland from 1 October 2018 until 17 April 2020 at a salary of €70,000. He claims he was required to work more than the number of hours permitted under the Organisation of Working Time Act (OWTA), he was not paid for annual leave and public holidays, and he was not able to take annual leave.

CA-00035874-001 – OWTA: the complainant says that during his employment he only took a total of 5 days leave. He was entitled to a further 5 days in 2018 and 18 days in 2019. He was paid for his 2020 entitlement when he left. He is claiming for payment of 23 days which, due to work commitments, he was unable to take and the respondent did not allow him to carry over the leave.

He also claims he worked 11 public holidays during his employment for which he could not take leave in lieu at another time and for which he was not paid.

CA-00035874-002 – OWTA: the complainant says he worked an average of 50 – 60 hours per week for the entirety of his employment in contravention of the hours permitted under the OWTA and he received no payment for the extra hours he worked. He worked as cover in another hotel for the first two months. Then he moved to the hotel he was appointed to work in and for the first two and a half months there he had no managerial support and he worked seven days a week and averaged 80 – 85 hours per week. After this he took Sundays off. His contract says he his should not exceed “48 hours average per week over a 4 month period”.

CA-00035874-003 – Payment of Wages: the complainant says he did not receive payment for 23 days annual leave he was unable to take and was not paid for 11 public holidays he worked; a total of 34 days amounting to €8,884.61.

CA-00035874-001 – OWTA: the respondent says their policy was not to allow the carry over of leave. This was in the complainant’s contract and, in his management role, he would have been aware of it. He was paid for untaken leave in 2020 when he left. The joint owner gave evidence that he ‘pleaded’ with the complainant to go on holiday but he refused.

The complainant made no claim for the Public Holidays whilst in their employment.

CA-00035874-002 – OWTA: the respondent says the complainant helped out at another hotel for the first 2 months and cannot understand why the complainant worked extra hours during this period. Thereafter, the respondent says the complainant was left to manage the hotel and was responsible for the rosters and hours of all staff, including his own. Following a conversation about leave he was offered a relief but the respondent does not know why he did not avail of the offer.

His contract says he should not work more than an average of 48 hours a week. Also, the respondent had software to record the working hours of all staff, which the complainant would have used in his role as manager. However, he did not put himself on the system, as he said it was not suitable for a General Manager. Therefore, the respondent does not have a record of the hours worked by the complainant. They contest the hours the complainant has claimed he worked and enquiries made by the joint owner since these claims to the WRC were made have indicated he did not attend every day, as he claims, and on some days the complainant came to work but only attended for very short periods of time.

CA-00035874-003 – Payment of Wages: the respondent says their policy was that staff should not carry out leave, apart from exceptional circumstances. The complainant made no claim for the payment of Public Holidays whilst he was working for them.

CA-00035874-001 – OWTA – The complainant is claiming for 23 days annual leave days he says he was unable to take in 2018 and 2019 and 11 days for Public Holidays he worked. His contract stated:

“Full-time Employees are entitled to 20 days holiday in each calendar year. The Company’s holiday year runs from 1st January to 31st December in each year. Holidays cannot be carried over from one holiday year to another except with the prior written consent of the Company. Accrued, but untaken, leave will be automatically forfeited at the end of each holiday year, except in the case of annual leave untaken due to long-term illness which may be taken within a period of 15 months following the end of the leave year during which the statutory leave entitlement accrued. Your entitlement to holidays or pay in lieu for Public Holidays shall be in accordance with the provisions of the Organisation of Working Time Act, 1997.”

The OWTA does allow for the carry-over of leave in limited circumstances but this has to be taken within the first six months of the following leave year. However, where leave cannot be taken, as claimed by the complainant, the entitlement to the leave cannot be lost. I conclude the respondent did not make significant efforts to ensure the complainant took his leave and in these circumstances he was unable to take the majority of his leave.

The respondent did not contest the amount of annual leave not taken. I therefore find the complaint is well founded and I award the complainant payment for 23 days annual leave.

The complainant contends he worked 11 Public Days for which he did not receive appropriate leave in lieu or payment. The respondent only said that he was unaware, he did not contest the complainant’s claims. In these circumstances I find the complaint is well founded and award the complainant payment for 11 days Public Holidays he worked.

CA-00035874-002 – OWTA; the complainant claims he worked in excess of the hours allowed under the OWTA for the entirety of his employment with the respondent. The respondent says he does not agree and there periods of time when there was no need for the complainant to work anymore than standard hours. The Complainant’s contract states:

“The General Manager’s normal hours of work are as necessary to ensure the proper performance of the General Manager’s duties under this contract, but not exceeding of 48 hours average per week over a 4 month period.

Your normal hours of work are between 7am and 12 pm and such hours will be spread out over a 7 day week. A roster will be provided containing details of your working hours including on Saturdays and Sundays and the times and duration of any breaks which you may take during working hours, all of which shall be in compliance with the Organisation of Work Time Act 1997.” The complainant’s hours were not recorded during his employment with the respondent. He was not on the time recording system and he did not keep a personal record. According to the OWTA the respondent is obliged to keep records. Records were kept for all other members of staff. However, the complainant, as General Manager of the hotel, chose not to put himself on the time recording system. He, therefore, must accept some responsibility for the records not having been kept. He produced a calendar which had been completed after he left the respondent’s employment showing a record of hours worked, these records are very generalised and I cannot accept them as an accurate record of hours worked.

The respondent was happy for the complainant to run the hotel and do whatever was necessary to make it a success. He gave the complainant a good deal of freedom to do this. However, by so doing he had no idea of what the complainant was doing on a day-to-day basis and obviated himself from the role he had as manager of the complainant, a role which is enshrined in the OWTA. Therefore, he cannot deny the complainant worked the hours he has claimed. He has only said he does not know why he would have needed to work long hours as some periods of his employment. He gave some hearsay evidence, of short days worked by the complainant, but I cannot accept this.

The lack of verifiable evidence makes it difficult for me to come to conclusions. However, I have taken into assessed all the evidence put to me and reached the conclusion the complainant probably did not work excessive hours during the first 2 months when he covered at another hotel. I accept he worked long hours during most of 2019, until the end of the summer season. After that it is less apparent why he needed to work excessive hours. Based on my conclusions I find this complaint is well founded in that for the period January to September 2019 the complainant worked seven days per week and worked in excess of an average of 48 hours per week.

CA-00035874-003 – Payment of Wages – this claim is for the leave which has been considered under CA-00035874-001 and is therefore a duplicate complaint and I find it is not well founded.

CA-00035874-001 – OWTA – For the reasons given above I find both aspects of the claim are well founded and I award the complainant payment for 23 days annual leave and 11 days pay for Public Holidays he worked. This amounts to a total of 34 days at €269.23 per day; a total of €9,153.82.

CA-00035874-002 – OWTA – for the reasons given above I find the complaint is well founded and, taking into account the complainant’s role as manager of the hotel, in not recording his hours and not bringing it to the attention of the respondent as a possible breach of the OWTA during his employment, I award the complainant three month’s salary; €17,500.

CA-00035874-003 – Payment of Wages – for the reasons given above I conclude this claim is a duplicate of CA-00035874-001 and is therefore not well founded.