DWT2110

1.Appeal of Adjudication Officer's Decision No(s). ADJ-00021915, CA-00028712-001, CA-00028721-002

The Adjudication Officer ordered the Appellant to make a payment of €273.32 in respect of what he decided was an underpayment of annual leave entitlement and a payment of €634.95 in respect of what was referred to as the Public Holiday entitlement.

Preliminary matter

The Appellant had indicated in its written submission made to the Court in advance of the hearing that it would raise a preliminary matter at the hearing of the Court contending that the entity named as the Respondent in the decision of the Adjudication Officer was not the employer of the Complainant.

In the event, no submission was made by the Appellant at the hearing supporting the contention made without supporting argument in the written submission of the Appellant. The Court concludes that no matter related to the identity of the Complainant’s employer was moved by the Appellant at its hearing and consequently no decision is required of the Court in respect of this matter.

Relevant Law

The Act at Section 20 in relevant part states as follows:

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—

(a) to 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 1 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 —

(i) within the leave year to which it relates,

(ii) with the consent of the employee, within the period of 6 months after the end of that leave year, or

(iii) where the employee —

(I) is, due to illness, unable to take all or any part of his or her annual leave during that leave year or the period specified in subparagraph (ii), and

(II) has provided a certificate of a registered medical practitioner in respect of that illness to his or her employer,

within the period of 15 months after the end of that leave year. ]

(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

(c) in a case in which board or lodging or, as the case may be, both board and lodging constitute part of the employee’s remuneration, include compensation, calculated at the prescribed rate, for any such board or lodging as will not be received by the employee whilst on annual leave.

Section 21 of the Act in relevant part provides as follows:

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 submitted that at all times his rate of pay was below that provided for in the SEO. The Complainant submitted that the Appellant was a business encompassed by the SEO and consequently that the rate of pay paid to the Complainant during periods of annual leave and Public Holidays was below the rate to which he was entitled.

Summary Position of the Appellant

The Appellant submitted that the complaint under the Act related to the proposition that the Appellant was a business encompassed by the terms of S.I. No. 455 of 2017 – the Sectoral Employment Order (Construction Sector) 2017 (the SEO). On that basis the Complainant contended that he was underpaid in respect of his pay for annual leave and Public Holidays falling within the cognisable period for the within complaint.

The Appellant submitted that it was not a business encompassed by the SEO and consequently no underpayment occurred.

Discussion and Conclusion

In order for the Court to be able to decide whether the Appellant has breached the Act as alleged by the Complainant it is necessary that any alleged breach is specified.

In the within matter the Court has not been provided in the written submissions of the parties or in oral submissions of the parties at its hearing with detail of annual leave availed of by the Complainant during the cognisable period for the complaint.

Neither has the Court been provided with detail of the Public Holidays falling in the period, the amount paid to the Complainant in respect of any such holiday or detail of any calculation of any alleged underpayment.

In a separate complaint before the Court under separate legislation, it has been decided that the Appellant is a business encompassed by the SEO. The consequence of that decision, which relates to the parties currently before the Court and which relates also to the cognisable period for the within complaint, is that the rate of pay then provided for by the SEO was the rate of pay payable to the Complainant throughout the period encompassed by the within complaint.

Notwithstanding that separate decision however, the Court concludes that no detail has been provided such as to allow the Court to decide that a breach of the Act has occurred on any Public Holiday during the cognisable period for the within complaint or that any underpayment of pay for annual leave availed of by the Complainant has occurred during the same period.

Decision

The complaint of contraventions of the Act on unspecified occasions is not well founded. The Appeal succeeds.

The decision of the Adjudication Officer is set aside.

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
27 July 2021	______________________
CC	Chairman