Complainant

Respondent

Parties

Daniel Young

G2 Construction Ltd

Representatives

Not represented

Did not attend the hearing

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-00040164-001

29/09/2020

The complainant is a carpenter and he commenced employment with the respondent on November 3rd 2016.  The respondent had a contract with the HSE and, in July 2020,  the complainant was offered a job directly with the HSE.  He resigned from his job with the respondent on July 30th.  When he was working with the respondent, he earned €826.28 per week and he was paid fortnightly.  From the payslips he produced in evidence, it is apparent that he generally worked 42.5 hours a week and his hourly rate was €19.44.

This is a complaint about an entitlement to pay for public holidays and annual leave.

The complainant’s terms and conditions of employment were governed by an agreement between the construction employees’ unions and the Construction Industry Federation (CIF) .  In addition to the nine statutory public holidays, this agreement provides for 21 days of annual leave to be taken on specified days each year, coinciding with Christmas, Easter and summer holidays.  Every year, the CIF publishes a schedule of public holidays and the days on which the 21 days of annual leave may be taken.  It would appear from this schedule that the holiday year ends on the public holiday that falls on the first Monday in August.  In 2020, the CIF schedule provided that March 16th was a day of annual leave and that the four days after Easter Monday,  April 14th to 17th should be taken as annual leave.

Due to the pressure of work as a result of the Covid 19 pandemic, the complainant worked on March 16th and on Saint Patrick’s Day 2020.  While he was paid for working on these days, he did not get the benefit of the day of annual leave or the public holiday.  When he looked back over his payslips, he discovered also that he didn’t get the benefit of the public holiday that fell on Monday, October 28th 2019.  He was at work on that day also.

The HSE required the services of the respondent company during April 2020 and the complainant did not take holidays.  Instead he worked the week after Easter Monday, from Tuesday, April 14th to Friday, April 17th.  He said that he agreed with his manager that he would take an extra four days’ holidays from Tuesday, August 4th to Friday, August 7th, as an alternative to the four days at Easter.

The complainant went on holidays on Monday, July 21st 2020 and was due to return to work three weeks later, on Monday, August 10th.  His last day of holidays was going to be Friday, August 7th.  However, on Thursday, July 30th, he sent an email to one of the two directors of the company, in which he gave a week’s notice of his intention to resign.  In the email, he said,

“As you may know I was offered the chance to work direct for the HSE.  I have just received the revised contract from them.  If I was to let this opportunity pass it would come between me and my sleep for the rest of my days, therefore, I have to accept it.  I am going to start with the HSE on Tuesday.  If you need me to cover call-outs out of office hours over the next few weeks I would be available to do so.

I would like to give you a week’s notice as of today that I will be leaving G2 Construction.  I’d also like to thank you for the experience I’ve gathered over the last three and a bit years.

I’m not sure where this journey will end but I hope and look forward to working alongside you guys again.

You can let me know where you would like me to drop the van.

Many thanks

Daniel Young.”

The effect of this email was that the complainant was on holidays while his employer was on notice of his decision to leave on August 7th.  However, On Thursday, August 6th, the complainant received a payslip and pay for the week ending on August 2nd.  He received no further pay.  He was not paid for the public holiday that fell on Monday, August 3rd, or for the four days that ended on Friday, August 7th.

In summary, the complainant is seeking payment for the following:

1.  Working on a public holiday on October 28th 2019; 

2.  Working on a day of annual leave on March 16th 2020;

3.  Working on a public holiday on March 17th 2020;

4.  Working on four days of annual leave from April 14th to 17th 2020;

5.  Entitlement to the public holiday on August 3rd 2020, while he was on notice.

The respondent did not attend the hearing.  However, in advance of the hearing, the complainant provided copies of about a dozen emails he sent to the directors to try to resolve his complaint about non-payment of holiday pay.  In the emails, he set out his understanding and his advice that he was entitled to five days’ holiday pay and two days’ public holiday pay.  In response, the directors complained that he didn’t give two weeks’ notice of his intention to resign and that he used the company van and did not submit it for inspection before he returned it.  On September 7th, one of the directors wrote to the complainant as follows:

“I was entitled to a minimum of 2 weeks’ notice from you to be given during normal working time, how do you intend to deal with this?”

On May 24th 2021, one of the directors wrote to the WRC and said that they would like to settle the matter “without any admission of liability” for €624.26, which would appear to be the equivalent of what the complainant used to earn as net pay for one week.

Pay for Public Holidays

The complainant’s evidence is that he worked on Monday, October 28th 2019, and on March 17th 2020, which were public holidays and that he received no additional pay for these days.  He also complains that he was not paid for the public holiday that fell on August 3rd 2020, when he was on notice of his intention to leave his job.

Pay for Annual Leave

It is the complainant’s case that he worked on March 16th 2020, which, according to the CIF schedule, was a day of annual leave for the construction sector.  In respect of the holidays from Tuesday, April 14th to Friday, April  17th, the complainant agreed to work on these days and to take four alternative days from August 4th to 7th.  He was then on notice during that week and he received no wages for these days.  It would appear that his former employer was upset that the complainant’s notice ran concurrently with his holidays.

Findings

The complainant provided copies of his payslips from July 2019 until his last payslip ending on August 2nd 2020.   Each of the public holidays is identified on the payslips in the months in which they occur.  The complainant received €155.52 gross for each public holiday, which, based on his hourly rate of €19.44, is eight hours’ pay.  It is evident that the complainant was paid for most of the public holidays that occurred.  However, the payslip which provides details of pay for the fortnight ending on November 3rd 2019, indicates that he worked 76 hours that fortnight and there is no reference to holiday pay for the public holiday that fell on Monday, October 28th.  Similarly, the complainant’s payslip for the fortnight ending on March 29th 2020, indicates that he worked 85 hours at the basic rate of €19.44 and nine hours of overtime at time and a half.  There is no evidence that he was paid for working on March 16th and 17th, when, according to the CIF holiday schedule, he was entitled to be on holidays.

As this complaint was submitted to the WRC on September 29th 2020, contrary to section 41(6) of the Workplace Relations Act 2015, the complaint regarding the public holiday on October 28th 2019 is well outside the time limit of six months within which complaints must be submitted.  The complaint regarding the holiday that fell on March 16th and the public holiday on March 17th is 12 days outside the time limit for submitting a complaint.  I have decided to accept the complaints regarding March 16th and 17th for adjudication, because, during the months of August and September 2020, the complainant made strenuous efforts, by corresponding with his employer, to have his grievance resolved, but in the end, his efforts failed.

As he had worked for his employer during the four weeks that ended on Monday, August 3rd 2020, in accordance with section 23(2) of the Organisation of Working Time Act 1997, the complainant is entitled to the benefit of that public holiday.

In respect of public holidays therefore, I find that the complainant is entitled to compensation for working on March 17th 2020 and he is also entitled to compensation in respect of the public holiday that fell on Monday, August 3rd 2020.

The complainant was on annual leave on July 30th 2020 when he decided to resign.  He gave one week’s written notice to his employer.  There is no legal impediment to an employee being on holidays and, at the same time, being on notice of their intention to resign.  Just as it is open to an employer to give an employee notice of the termination of their employment and to instruct them to take holidays during the notice period, an employee may resign and be on holidays while “working out” their notice.

From the complainant’s evidence at the hearing and, from the information on his payslips, it is apparent that, apart from Good Friday, April 10th 2020, he took no other annual leave in 2020 before he went on holidays on July 21st.  He worked on what was meant to be a day’s annual leave on March 16th, and he also worked on the four days after Easter Monday, which, according to the CIF schedule, are also intended to be annual leave days.  When he went on three weeks’ holidays on July 21st 2020, he did so with his employer’s consent.  The fact that he gave notice of his intention to resign on July 31st, does not disentitle him to holiday pay.

In respect of annual leave therefore, I find that the complainant is entitled to pay for the annual leave day that fell on March 16th and the four days’ holidays from April 14th to 17th which he was scheduled to take from August 4th to 7th.

By agreement with his former employer, the complainant worked on March 16th and 17th 2020 and from April 14th to 17th, rather than taking them as holidays.  He is also entitled to the benefit of the public holiday that fell on August 3rd 2020.  I find therefore, that the complainant is entitled to compensation for two public holidays and five days of annual leave. 

Section 23 of the Organisation of Working Time Act provides that, at the cessation of employment, where an employee has not had the benefit of a day of annual leave or a public holiday, they should be compensated by a payment equivalent to one day’s pay.  I note from the complainant’s payslips that he generally worked 85 hours a fortnight, equivalent to 8.5 hours per day.  As his hourly rate was €19.44, his daily rate of pay was €165.24. 

I decide that the respondent is to pay the complainant €1,156.68 (€165.24 x 7), as compensation for not having had the benefit of two public holidays and five days of annual leave when he was employed.  As this is compensation for non-payment of wages, the amount awarded is subject to tax.

Non-payment of holiday pay, notice coinciding with holidays