ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00028800

Parties:

Complaint:

Date of Adjudication Hearing: 08/01/2021

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

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

Background:

The Complainant was employed as Sheet Metal Designer from 26th August 2019 until 3 June 2020. The Complaint refers to the non-payment of wages upon the termination of the Complainant’s employment.

Summary of Complainant’s Case:

The Complainant submitted that the day after his termination of his employment on 3rd June 2020 he received his final payslip but as it did not contain a balance for the annual leave he had not taken. The remaining payslips he received only refunded USC payments. The Complainant sought payment for the outstanding annual leave entitlements where he maintained that he had accrued 15 days (120 hours) annual leave, had taken 7 days (55 hours) which left him with 8 days (65 hours). The Complainant contended that the calculation of his annual leave entitlements should also have included reckoning the time he was on Covid-19 layoff during April and May2020. The Complainant submitted he was therefore entitled to €833.95 based on his pay which was €12.83 per hour.

Summary of Respondent’s Case:

The Respondent maintained that it had calculated the annual leave entitlement for the respondent and submitted it had underpaid the Complainant by €91.14. The Respondent submitted that the Complainant had worked 542.5 hours from January to June when the employment was terminated. The Respondent advised that the Complainant did not work for six weeks due to Covid-19 restrictions. It calculated the annual leave at 8% of hours worked which amounted to an entitlement of 43.4 hours. The Respondent contended the Complainant had received 16 hours of paid leave during the year and was paid for 20.3 hours (€260.40) of untaken leave upon the termination of his contract, and this left a balance of 7.83 hours amounting to the €91.14 that remained outstanding.

 Findings and Conclusions:

Section 5 (1) of the Payment of Wags Act 1991 states that an employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

• the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

• the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

• in the case of a deduction, the employee has given his prior consent in writing to it.The Complainant maintained that the Respondent unlawfully deducted from his pay his annual leave entitlements upon cessation of his employment.Based on the records provided I find that the complainant therefore worked a total of 14.5 weeks between 1st January and 3rd June 2020, (amounting 565 hours based on a 39-hour week). This amounts to an average of 134 hours per month.Furthermore Section 23.(1) (a) Of the Act states: (i) where an employee ceases to be employed, and (ii) the whole or any portion of the annual leave in respect of the relevant period 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.

Decision:As I have found the Complainant did not receive payment for 8.7 hours of his annual leave entitlements on cessation of his employment, I uphold the complaint and require the Respondent to pay the Complainant arrears of €111.62.

1. Section 6 of the Payment of Wages Act, 1991 requires that I make a decision in relation to a contravention under Section 5 of that Act.
2. The Respondent submitted that the Complainant was entitled to 43.4 hours and that they did not pay him for 7.1 hours of this (€91.14). As the Complainant was in fact only paid for 36.3 hours of holidays, I find that the complaint is well founded, and that the Complainant is due to be paid for 8.7 hours or €111.62.
3. Section 19(1)(b) of the Organisation of Working Time Act 1997 provides that an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to one-third of a working week for each month in the leave year in which he or she works at least 117 hours. On that basis the Complainant’s annual leave entitlement amounts to 1.15 weeks (or 45 hours).
4. The Complainant was contracted to work 39 hour per week. He was on Covid-19 layoff for circa 7 .5 weeks during April and May 2020. As this period of time is deemed to be a lay-off is not working time that is reckonable under the organisation of Working Time Act, 1997. Therefore, the Covid-19 lay off period does not accrue an annual leave entitlement.

Dated:   15th January 2021

Workplace Relations Commission Adjudication Officer: Gerry Rooney