Complainant

Respondent

Parties

Helen  O'Regan

Eventure Foods Ltd, Red Cherry Cafe

Representatives

  self

 self

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-00040445-001

16/10/2020

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

CA-00040445-002

16/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00040445-003

16/10/2020

The complainant commenced employment as a catering assistant on 28/01/2018.  She commenced maternity leave on 02/03/2020.  The respondent closed its operations on 17/03/2020 due to the COVID-19 pandemic.  The complainant is claiming that she was not paid for all her holidays in 2018, 2019 and 2020.  She is also claiming that she did not receive her public holiday entitlement for the same years.  The complainant did not receive a statement in relation to her terms of employment.  She submitted her complaint to the WRC on 16/10/2020.  She was paid €400.00 gross per week.

The complainant commenced working with the respondent as a catering assistant on 28/01/2018. She commenced maternity leave on 02/03/2020.  This was due to end on 29/08/2020 at with time she was planning to take parental leave from 30/08/2020 until 13/09/2020.  She decided that she would not be returning to work after her maternity and parental leave.  She wrote to the respondent on 10/10/2020 requesting her holiday pay based on her earnings as follows:

2018:  €16,247.99 and only received €378.33 holiday pay

2019: €18,885.54 and only received €783.46 holiday pay

2020: €2,658 and did not receive holiday time or pay as she was on maternity leave.

The complainant received no compensation for any public holidays which occurred since she commenced employment on 28/01/2018 and she submitted copies of all her pay slips none of make any reference to public holiday pay.  She submits that he fulfilled the criteria for entitlement as she worked in excess of 40 hours in the previous five weeks.

The complainant also submits that she never received any statement in relation to her terms and conditions of employment.  She also never signed or received a contract of employment from the respondent.

The respondent confirmed that the complainant was in his employment on the dates outlined by the complainant.  His business had to close on 17/03/2020.  He provided all staff with all the necessary information to obtain the Pandemic Unemployment Payment.  As the business was closed and staff are receiving payment from the Government then staff would not have accumulated holidays.  The complainant would have been due to return in August 2020 after her parental leave but as the business was still closed this was not possible.  There were text messages from the complainant to a manager to say that she wold not be returning when her parental leave ended.  This was received on 13 September 2020 and this read “Hi, when my parental leave ends I am eligible to apply for the Pandemic Unemployment Benefit, so I will not be returning.”

The respondent submitted that the café business is a “very transient employment”.  In his case all staff are paid the minimum wage when they commence employment.  When they stay more than a few weeks/months he tops up their wages to cover any Sunday premium or public holidays.  The complainant was not due any wage increases in 2018 as she indicated that she would not be staying.  Her wages were increased in order to cover her Sundays and Public Holidays.

The respondent also told the hearing that his manager was indisposed in hospital and was not available to provide more information.  He found it difficult to find out what the entitlements of his employees were during the pandemic.  He has linked with the WRC, Citizen’s Information Service and other services but he was still not sure what the position was.  He accepted that if the complainant was entitled to be paid for holidays or public holidays he would honour that.

The respondent did not always provide a contract of employment as it depended on how long the employee stayed.  If an employee stays for a longer period of employment they are then issued with a contract of employment and all the written details of their employment.

 CA-00040445-001: The complainant is seeking payment for holidays for the years 2018, 2019 and 2020.  In 2018 the complainant earned a total of €16,247.99 gross and received one week’s holiday for which she was paid €378.83.  In 2019 she earned a total of €18,885.54 gross and received a payment of €385.06 for one week’s holiday.  In 2020 she earned a total of €2,656 and did not receive any holiday time or pay.

Working time and other related matters such as annual leave entitlements are regulated by the Organisation of Working Time Act, 1997, which implements in Ireland the requirements of the Directive 2003/88EC of the European Union (the Working Time Directive).

Section 19 of the Organisation of Working Time Act 1997 outlines that an employee’s annual leave entitlement is based on the amount of time that they have worked during the year as is calculated in three ways:

(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):

This Act (20 (1)) also deals with the times at which annual leave is granted to an employee and this is determined by the employer subject to a number of provisions:

(a)   The employer taking into account-

(i)               The need for the employee to reconcile work and any family responsibilities,

(ii)              The opportunities for rest and recreation available to the employee.

(b)   To the employer having consulted the employee or the trade union (if any) of which he or she is a member, not later than one month before the day on which the annual leave or, as the case may be, the portion thereof concerned is due to commence, and

(c)    To the leave being granted within the leave year to which it relates or, with the consent of the employee, within 6 months thereafter.

(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, and ….”

Section 23 of the Act outlines the compensation to be given when an 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 lave in respect of the current leave year or, in the case the cesser of employment occurs during the first half of that year, in respect of that year, the previous leave 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.

The first question to be addressed is whether the complainant can include all her untaken annual leave for the years 2018, 2019 and 2020 in the calculation of cesser pay due when she ended her employment on 13/09/2020. The case of Royal Liver Assurance v Macken [2020] 4 IR 427 held that “under Section 27(4) of the 1997 At, the complaints are out of time and the Rights Commissioner had no jurisdiction to entertain any complaint relating to the contravention of the applicant’s annual leave obligations and obligations in respect of public holidays oved to the respondents arising during the leave year 1999-2000”.   In that case the High Court held that the latest date of contravention to grant leave is the last day of the leave year in question.  Where the employee is not granted their annual leave entitlement within the leave year the employer is obliged to consult with the employee in order obtain their consent for the balance of any leave due to be taken within six months of the leave year in question. 

In the context of that decision the period to submit a complaint in relating to the granting of annual leave is six months from the end of the leave year.

However, I must also consider that there is a significant amount of Court of Justice of the European Union (the CJEU) jurisprudence in relation to the taking of annual leave and the impact of this is well set out by the Adjudicator in ADJ-00019188.  The CJEU jurisprudence has established that the right to annual leave is derived from a General Principle of European Law and the Charter of Fundamental Rights of the European Union.    Article 7 of the Working Time Directive (2003/88/EC) sets out the entitlement to paid annual leave as follows:

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

This provision is transposed into Irish lay by virtue of the enactment of Sections 19, 20 and 23 of the Organisation of Working Time Act.

The CJEU has made important decisions in relation to the carry-over of annual leave.  In one particular case, KHS AG v Winfried Schulte C-214/10 recognises that “a provision of national law setting out a carry-over period for annual leave not taken by the end of the reference period aims, as a rule, to give a worker who has been prevented from taking his annual leave an additional opportunity to benefit from that right at the end of the reference period or of a carry-over period.  However, the Court attached to that finding of principle the condition that a worker who has lost his right to paid annual leave must have actually had to the opportunity to exercise the right conferred on him by that directive.”  In that case the worker was unable to work due a serious health issue between the years 2002 and 2008.  In another case, King v The Sash Window Workshop Ltd, C-214/16, the UK Court of Appeal had concluded that the maximum carry-over period of 18 months, but the CJEU did not agree with the imposition of such a limitation.

The implication of these and other judgements is that the loss of annual leave is not automatic and can only ensue in circumstances where the employer can demonstrate that the worker was put in a position to take the leave so as to exercise his/her right to take that leave.

In this instant case the complainant was entitled to annual leave.  The right to this leave is a fundamental right following the Directive and Charter.  Given the significant jurisprudence in the CJEU in relation this matter I must safeguard the complainant’s right to paid annual leave.  In that context the respondent was aware of the complainant’s entitlement to annual leave.  The respondent did not provide any evidence that the complainant was provided any opportunity to take paid annual leave or that he had a process or system which would provide evidence that he had exercised due diligence in this matter.  The respondent did not provide any evidence that it had put the complainant on notice that annual leave would be forfeited on a “use it or lose it” basis.  At the hearing the respondent emphasised that it was difficult to do so due to the transitory nature of the business.

I conclude that the complainant is entitled to payment for untaken annual leave as follows:

2018:  €921; 2019: €747.36; 2020: €212.64.  These figures are based on the provision of Section 19 (c) of the Organisation of Working Time Act 1997 where an employee is entitled to “8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks in a leave year in which he or she works at least 1,365 hours)” less any holiday payments already made in 2018 and 2019.  The figure for 2020 relate entirely to the hours the complainant worked before the period of lay off which commenced on 17/03/2020. 

An entitlement to annual leave arises under the Organisation of Working Time Act, 1997 on the basis of hours worked, with the exception of sick leave.  Therefore, when an employee is on a period of temporary lay-off, they do not accrue an entitlement to annual leave. The consequence of a lay-off is that a worker is employed but does not work.  During a period of lay-off the obligation to provide work and pay wages is suspended but the continuity of employment is protected.   In this case all employees, including the complainant, were placed on lay-off with effect from 17/03/2020.

As the respondent was in breach of Section 23 of the Act by not providing outstanding holiday pay owning to the Complainant at the cesser of employment the complainant is entitled to compensation for that infringement. 

In Von Colson & Kamann v Land Nordrhein – Westfalen [1984] C-14/83 the CJEU has made it clear that where such a right is infringed the judicial redress provided should not only compensate for economic loss sustained but must provide a real deterrent against future infractions.

Having regard to all the relevant considerations I award the complainant the sum of €2,481 which includes €1,881 outstanding holiday pay.

CA-00040445-002: The Organisation of Working Time Act, 1997 outlines an employee’s entitlement in respect of public holidays.

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:

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.

The complainant commenced maternity leave on 02/03/2020 and the respondent had to lay off all his employees from 17/03/2020.  During a period of lay-off a worker is employed but does not work.  The continuity of employment is preserved but the obligation to provide work or pay wages does not apply.  The position with regard to public holidays during a period of lay-off is different to the annual leave entitlement.  If an employee is in employment at the time that a public holiday occurs and he or she has an entitlement to a benefit of that holiday as outlined above.  Under s.21(1) of the Act they are entitled to the benefit of a public holiday.  Employees are entitled to benefit for any public holidays that occur during the first 13 weeks of lay-off. 

In this case the complainant was laid off on 17/03/2020 and the period of thirteen weeks ends on 16/06/2020.

There were four public holidays during this period (17/03/; 13/04/; 04/05/; 01/06/) and the complainant is entitled to benefit from those.  She is entitled to be paid a total of €320.04 gross for those public holidays.

CA-00040445-003:

The start date of the complainant’s employment was agreed as 28/01/2018 and resigned her position on 13/10/2020.  The complaint was received in the Workplace Relations Commission on 16/10/2020.  The breach of the 1994 Act is in respect is a subsisting contravention, continuing until the termination of the employment relationship between the parties.

The Terms of Employment (Information) Act 1994, Section 3 sets out the basic terms of employment which the employer must provide to the employee in a written form within two months of starting the employment.

3.” (1) An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say –

a)     the full names of the employer and the employee,

b)     the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963),

c)      the place of work or where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

d)     the title of the job or nature of the work for which the employee is employed,

e)      the date of commencement of the employee’s contract of employment,

f)       in the case of a temporary contract of employment, the expected duration thereof of, if the contract of employment is for a fixed term, the date on which the contract expires,

g)     the rate or method of calculation of the employee’s remuneration,

h)     the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

i)       any terms or conditions relating to hours of work (including overtime),

j)       any terms or conditions relating to paid leave (other than paid sick leave),

k)      any terms or conditions relating to –

l)       (i)incapacity for work due to sickness or injury and paid sick leave, and

m)    (ii pensions and pension schemes.,

n)     the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

o)     a reference to any collective agreements which directly affect the terms and conditions of employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

The Act also required this statement to be signed and dated by or on behalf of the employer and the employer is also required to retain a copy of this statement for the period of employment and for a period of 1 year after the employment ceases.

This Act was amended by virtue of the Employment (Miscellaneous Provisions) Act 2018 and its provisions apply from 04/03/2019 whereby some of the core terms must be given in writing to an employee within 5 days of staring employment.  These are:

a)     “the full names of the employer and employee;

b)     the address of the employer in the State, or where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act 2014);

c)      in the case of a temporary contract of employment, the expected duration thereof, or, if the contract of employment is for a fixed term, the date on which the contract expires;

d)     the rate or method of calculation of the employee’s remuneration and the pay reference period for the purposes of the National Minimum Wage Act 2000;

e)      the number of hours which the employer reasonably expects the employee to work –

(i) per normal working day, and

(ii) per normal working week.”

It is the complainant’s position that she never signed or received a contact of employment of any documentation in relation to the terms of her employment.  At the hearing the respondent outlined that the café industry is very transitory in nature and he does not provide contract of employment when an employee commences employment.  He waits to see if they will remain on and then they are provided with written details of their employment. 

The respondent did not confirm awareness of their obligations under the Terms of Employment (Information) Act 1994 which outlines the minimum amount of information that the law obliges employers to provide to employees at the commencement of their employment.  These are legal requirements set down in the act.   As outlined above, since 04/03/2019 the Employment (Miscellaneous Provisions) Act 2018 Act obligates an employer to provide employees with certain essential information within 5 days after the commencement of employment.

Information on certain other aspects of the employee’s terms and conditions, as outlined above, must be provided within two months of the commencement of the employment.

I find that this complaint is well founded, and I award the complainant compensation of €1,600 gross which is the equivalent of four weeks remuneration.

CA-00040445-001:  Having regard to all the relevant considerations I award the complainant the sum of €2,481 which includes €1,881 outstanding holiday pay.

CA-00040445-002:  I award the complainant payment of €320.04 gross for four public holidays (17/03; 13/04; 04/05; 01/06).

CA-00040445-003: I decide that this complaint is well founded, and I award the complainant compensation of €1,600 gross which is equal to four weeks remuneration which is the sum I consider just and equitable having regard to all of the circumstances in this case.

I order that the above payments are made within six weeks from the date of this determination.

Holiday Pay.  Public Holidays.  Cesser pay

Complainant

Respondent

Parties

Helen  O'Regan

Eventure Foods Ltd, Red Cherry Cafe

Representatives

  self

 self

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-00040445-001

16/10/2020

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

CA-00040445-002

16/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00040445-003

16/10/2020

The complainant commenced employment as a catering assistant on 28/01/2018.  She commenced maternity leave on 02/03/2020.  The respondent closed its operations on 17/03/2020 due to the COVID-19 pandemic.  The complainant is claiming that she was not paid for all her holidays in 2018, 2019 and 2020.  She is also claiming that she did not receive her public holiday entitlement for the same years.  The complainant did not receive a statement in relation to her terms of employment.  She submitted her complaint to the WRC on 16/10/2020.  She was paid €400.00 gross per week.

The complainant commenced working with the respondent as a catering assistant on 28/01/2018. She commenced maternity leave on 02/03/2020.  This was due to end on 29/08/2020 at with time she was planning to take parental leave from 30/08/2020 until 13/09/2020.  She decided that she would not be returning to work after her maternity and parental leave.  She wrote to the respondent on 10/10/2020 requesting her holiday pay based on her earnings as follows:

2018:  €16,247.99 and only received €378.33 holiday pay

2019: €18,885.54 and only received €783.46 holiday pay

2020: €2,658 and did not receive holiday time or pay as she was on maternity leave.

The complainant received no compensation for any public holidays which occurred since she commenced employment on 28/01/2018 and she submitted copies of all her pay slips none of make any reference to public holiday pay.  She submits that he fulfilled the criteria for entitlement as she worked in excess of 40 hours in the previous five weeks.

The complainant also submits that she never received any statement in relation to her terms and conditions of employment.  She also never signed or received a contract of employment from the respondent.

The respondent confirmed that the complainant was in his employment on the dates outlined by the complainant.  His business had to close on 17/03/2020.  He provided all staff with all the necessary information to obtain the Pandemic Unemployment Payment.  As the business was closed and staff are receiving payment from the Government then staff would not have accumulated holidays.  The complainant would have been due to return in August 2020 after her parental leave but as the business was still closed this was not possible.  There were text messages from the complainant to a manager to say that she wold not be returning when her parental leave ended.  This was received on 13 September 2020 and this read “Hi, when my parental leave ends I am eligible to apply for the Pandemic Unemployment Benefit, so I will not be returning.”

The respondent submitted that the café business is a “very transient employment”.  In his case all staff are paid the minimum wage when they commence employment.  When they stay more than a few weeks/months he tops up their wages to cover any Sunday premium or public holidays.  The complainant was not due any wage increases in 2018 as she indicated that she would not be staying.  Her wages were increased in order to cover her Sundays and Public Holidays.

The respondent also told the hearing that his manager was indisposed in hospital and was not available to provide more information.  He found it difficult to find out what the entitlements of his employees were during the pandemic.  He has linked with the WRC, Citizen’s Information Service and other services but he was still not sure what the position was.  He accepted that if the complainant was entitled to be paid for holidays or public holidays he would honour that.

The respondent did not always provide a contract of employment as it depended on how long the employee stayed.  If an employee stays for a longer period of employment they are then issued with a contract of employment and all the written details of their employment.

 CA-00040445-001: The complainant is seeking payment for holidays for the years 2018, 2019 and 2020.  In 2018 the complainant earned a total of €16,247.99 gross and received one week’s holiday for which she was paid €378.83.  In 2019 she earned a total of €18,885.54 gross and received a payment of €385.06 for one week’s holiday.  In 2020 she earned a total of €2,656 and did not receive any holiday time or pay.

Working time and other related matters such as annual leave entitlements are regulated by the Organisation of Working Time Act, 1997, which implements in Ireland the requirements of the Directive 2003/88EC of the European Union (the Working Time Directive).

Section 19 of the Organisation of Working Time Act 1997 outlines that an employee’s annual leave entitlement is based on the amount of time that they have worked during the year as is calculated in three ways:

(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):

This Act (20 (1)) also deals with the times at which annual leave is granted to an employee and this is determined by the employer subject to a number of provisions:

(a)    The employer taking into account-

(i)                  The need for the employee to reconcile work and any family responsibilities,

(ii)                The opportunities for rest and recreation available to the employee.

(b)    To the employer having consulted the employee or the trade union (if any) of which he or she is a member, not later than one month before the day on which the annual leave or, as the case may be, the portion thereof concerned is due to commence, and

(c)     To the leave being granted within the leave year to which it relates or, with the consent of the employee, within 6 months thereafter.

(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, and ….”

Section 23 of the Act outlines the compensation to be given when an 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 lave in respect of the current leave year or, in the case the cesser of employment occurs during the first half of that year, in respect of that year, the previous leave 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.

The first question to be addressed is whether the complainant can include all her untaken annual leave for the years 2018, 2019 and 2020 in the calculation of cesser pay due when she ended her employment on 13/09/2020. The case of Royal Liver Assurance v Macken [2020] 4 IR 427 held that “under Section 27(4) of the 1997 At, the complaints are out of time and the Rights Commissioner had no jurisdiction to entertain any complaint relating to the contravention of the applicant’s annual leave obligations and obligations in respect of public holidays oved to the respondents arising during the leave year 1999-2000”.   In that case the High Court held that the latest date of contravention to grant leave is the last day of the leave year in question.  Where the employee is not granted their annual leave entitlement within the leave year the employer is obliged to consult with the employee in order obtain their consent for the balance of any leave due to be taken within six months of the leave year in question. 

In the context of that decision the period to submit a complaint in relating to the granting of annual leave is six months from the end of the leave year.

However, I must also consider that there is a significant amount of Court of Justice of the European Union (the CJEU) jurisprudence in relation to the taking of annual leave and the impact of this is well set out by the Adjudicator in ADJ-00019188.  The CJEU jurisprudence has established that the right to annual leave is derived from a General Principle of European Law and the Charter of Fundamental Rights of the European Union.    Article 7 of the Working Time Directive (2003/88/EC) sets out the entitlement to paid annual leave as follows:

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

This provision is transposed into Irish lay by virtue of the enactment of Sections 19, 20 and 23 of the Organisation of Working Time Act.

The CJEU has made important decisions in relation to the carry-over of annual leave.  In one particular case, KHS AG v Winfried Schulte C-214/10 recognises that “a provision of national law setting out a carry-over period for annual leave not taken by the end of the reference period aims, as a rule, to give a worker who has been prevented from taking his annual leave an additional opportunity to benefit from that right at the end of the reference period or of a carry-over period.  However, the Court attached to that finding of principle the condition that a worker who has lost his right to paid annual leave must have actually had to the opportunity to exercise the right conferred on him by that directive.”  In that case the worker was unable to work due a serious health issue between the years 2002 and 2008.  In another case, King v The Sash Window Workshop Ltd, C-214/16, the UK Court of Appeal had concluded that the maximum carry-over period of 18 months, but the CJEU did not agree with the imposition of such a limitation.

The implication of these and other judgements is that the loss of annual leave is not automatic and can only ensue in circumstances where the employer can demonstrate that the worker was put in a position to take the leave so as to exercise his/her right to take that leave.

In this instant case the complainant was entitled to annual leave.  The right to this leave is a fundamental right following the Directive and Charter.  Given the significant jurisprudence in the CJEU in relation this matter I must safeguard the complainant’s right to paid annual leave.  In that context the respondent was aware of the complainant’s entitlement to annual leave.  The respondent did not provide any evidence that the complainant was provided any opportunity to take paid annual leave or that he had a process or system which would provide evidence that he had exercised due diligence in this matter.  The respondent did not provide any evidence that it had put the complainant on notice that annual leave would be forfeited on a “use it or lose it” basis.  At the hearing the respondent emphasised that it was difficult to do so due to the transitory nature of the business.

I conclude that the complainant is entitled to payment for untaken annual leave as follows:

2018:  €921; 2019: €747.36; 2020: €212.64.  These figures are based on the provision of Section 19 (c) of the Organisation of Working Time Act 1997 where an employee is entitled to “8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks in a leave year in which he or she works at least 1,365 hours)” less any holiday payments already made in 2018 and 2019.  The figure for 2020 relate entirely to the hours the complainant worked before the period of lay off which commenced on 17/03/2020. 

An entitlement to annual leave arises under the Organisation of Working Time Act, 1997 on the basis of hours worked, with the exception of sick leave.  Therefore, when an employee is on a period of temporary lay-off, they do not accrue an entitlement to annual leave. The consequence of a lay-off is that a worker is employed but does not work.  During a period of lay-off the obligation to provide work and pay wages is suspended but the continuity of employment is protected.   In this case all employees, including the complainant, were placed on lay-off with effect from 17/03/2020.

As the respondent was in breach of Section 23 of the Act by not providing outstanding holiday pay owning to the Complainant at the cesser of employment the complainant is entitled to compensation for that infringement. 

In Von Colson & Kamann v Land Nordrhein – Westfalen [1984] C-14/83 the CJEU has made it clear that where such a right is infringed the judicial redress provided should not only compensate for economic loss sustained but must provide a real deterrent against future infractions.

Having regard to all the relevant considerations I award the complainant the sum of €2,481 which includes €1,881 outstanding holiday pay.

CA-00040445-002: The Organisation of Working Time Act, 1997 outlines an employee’s entitlement in respect of public holidays.

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:

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.

The complainant commenced maternity leave on 02/03/2020 and the respondent had to lay off all his employees from 17/03/2020.  During a period of lay-off a worker is employed but does not work.  The continuity of employment is preserved but the obligation to provide work or pay wages does not apply.  The position with regard to public holidays during a period of lay-off is different to the annual leave entitlement.  If an employee is in employment at the time that a public holiday occurs and he or she has an entitlement to a benefit of that holiday as outlined above.  Under s.21(1) of the aAt they are entitled to the benefit of a public holiday.  Employees are entitled to benefit for any public holidays that occur during the first 13 weeks of lay-off. 

In this case the complainant was laid off on 17/03/2020 and the period of thirteen weeks ends on 16/06/2020.

There were four public holidays during this period (17/03/; 13/04/; 04/05/; 01/06/) and the complainant is entitled to benefit from those.

CA-00040445-003:

The start date of the complainant’s employment was agreed as 28/01/2018 and resigned her position on 13/10/2020.  The complaint was received in the Workplace Relations Commission on 16/10/2020.  The breach of the 1994 Act is in respect is a subsisting contravention, continuing until the termination of the employment relationship between the parties.

The Terms of Employment (Information) Act 1994, Section 3 sets out the basic terms of employment which the employer must provide to the employee in a written form within two months of starting the employment.

3.” (1) An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say –

a)      the full names of the employer and the employee,

b)      the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963),

c)       the place of work or where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

d)      the title of the job or nature of the work for which the employee is employed,

e)       the date of commencement of the employee’s contract of employment,

f)        in the case of a temporary contract of employment, the expected duration thereof of, if the contract of employment is for a fixed term, the date on which the contract expires,

g)      the rate or method of calculation of the employee’s remuneration,

h)      the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

i)        any terms or conditions relating to hours of work (including overtime),

j)        any terms or conditions relating to paid leave (other than paid sick leave),

k)       any terms or conditions relating to –

l)        (i)incapacity for work due to sickness or injury and paid sick leave, and

m)    (ii pensions and pension schemes.,

n)      the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

o)      a reference to any collective agreements which directly affect the terms and conditions of employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

The Act also required this statement to be signed and dated by or on behalf of the employer and the employer is also required to retain a copy of this statement for the period of employment and for a period of 1 year after the employment ceases.

This Act was amended by virtue of the Employment (Miscellaneous Provisions) Act 2018 and its provisions apply from 04/03/2019 whereby some of the core terms must be given in writing to an employee within 5 days of staring employment.  These are:

a)      “the full names of the employer and employee;

b)      the address of the employer in the State, or where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act 2014);

c)       in the case of a temporary contract of employment, the expected duration thereof, or, if the contract of employment is for a fixed term, the date on which the contract expires;

d)      the rate or method of calculation of the employee’s remuneration and the pay reference period for the purposes of the National Minimum Wage Act 2000;

e)       the number of hours which the employer reasonably expects the employee to work –

(i) per normal working day, and

(ii) per normal working week.”

It is the complainant’s position that she never signed or received a contact of employment of any documentation in relation to the terms of her employment.  At the hearing the respondent outlined that the café industry is very transitory in nature and he does not provide contract of employment when an employee commences employment.  He waits to see if they will remain on and then they are provided with written details of their employment. 

The respondent did not confirm awareness of their obligations under the Terms of Employment (Information) Act 1994 which outlines the minimum amount of information that the law obliges employers to provide to employees at the commencement of their employment.  These are legal requirements set down in the act.   As outlined above, since 04/03/2019 the Employment (Miscellaneous Provisions) Act 2018 Act obligates an employer to provide employees with certain essential information within 5 days after the commencement of employment.

Information on certain other aspects of the employee’s terms and conditions, as outlined above, must be provided within two months of the commencement of the employment.

I find that this complaint is well founded, and I award the complainant compensation of four weeks remuneration.

CA-00040445-001:  Having regard to all the relevant considerations I award the complainant the sum of €2,481 which includes €1,881 outstanding holiday pay.

CA-00040445-002:  I award the complainant payment for four public holidays (17/03; 13/04; 04/05; 01/06).

CA-00040445-003: I decide that this complaint is well founded, and I award the complainant compensation equal to four weeks remuneration which is the sum I consider just and equitable having regard to all of the circumstances in this case.

I order that the above payments are made within six weeks from the date of this determination.

Holiday Pay.  Public Holidays.  Cesser pay