FULL RECOMMENDATION
PARTIES : BIODECON SERVICES LIMITED T/A SIX LOG SOLUTIONS DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No(s). ADJ-00027042 CA-00035079-002,003. In line with the normal practice of the Court, the parties are referred to in this Determination as they were at first instance. Hence, Michael Hogan is referred to as the Complainant and Biodecon Services Limited t/a Six Log Solutions is referred to as the Respondent. The Complainant lodged his complaint with the WRC on the 06/03/2020. Background The Complainant joined the Respondent, on the 10thJuly 2018 as a Bio Decontamination Engineer and his employment came to an end on 31stDecember 2019. The Respondent provides services to the HSE and other organisations on a contractual basis. The Complainant submits he is due payment for annual leave and public holidays as he believed he was not paid for same during his employment. The Employer disputes that he was not paid for his annual leave and public holidays. Complainant’s case It is the Complainant’s case that he did not get paid for his annual leave during his employment or for public holidays. The Complainant as an appendix to his submission provided a copy of his contract which stated at the paragraph titled Holidays “Due to the flexible and part time nature of the job, holiday pay is paid up front. The basic rates of pay as outlined above already includes an allowance for pay. If you choose to take time off, no additional holiday pay will be payable. For your information this allowance has been calculated as approximately 9% of basic rate which is comparable pro rata with 22 days holidays per annum for a full-time employee, for example €110 +€10 holiday pay =€ 120 per job”.The Complainant submitted that he did not understand that it mean that he would not get paid when he actually took his holidays. The Complainant did not dispute the Respondent’s figures that from 1stApril 2019 till 31stDecember 2019 he worked 121 days. The Complainant accepted that he took annual leave during the period but submitted that he did not get paid at the time he took the annual leave. The Complainant also drew the Court’s attention to a letter he had received from the Employer threatening retribution in the civil courts if he went ahead with his claim under this Act. The Complainant accepted that he had not submitted a claim of penalisation as provided for in section 26 of the Act at this time. The Complainant also submitted that he had not received payment for public holidays and that the contract made no reference to public holidays. Respondent’s case The Respondent submitted that the contract set out how the holiday pay would be paid and that when the Complainant was actually taking his holidays, he would not get paid. In this case the Complainant was paid his full holiday entitlement. The Complainants claim in respect of the annual leave year 10thJuly 2018 when he commenced work and the 30thMarch 2019 was out of time. In respect of the annual leave year 1stApril 2019 to the 31stDecember 2019, the Complainant worked for 121 days. Applying the 8% formula set out in the Act the Complainant was entitled to 9.5 paid annual leave days. The Respondent submitted that the Complainant took annual leave on the following dates: 2nd, 3rdand 7thMay 2019, the 29thand 30thAugust 2019 and the 2ndto the 6thSeptember 2019 and therefore he had used his annual leave entitlement for the period. The Respondent accepted that there had been a breach of the Act in that the clause in the contract and the manner in which they paid the holiday pay did not comply with the Act. The Respondent submitted that the Complainant suffered no loss as he was paid for all his holidays albeit not in a manner compliant with the legislation. The Respondent in his submission referenced “an obscure clause that is hidden under the surface” and indicated that he was not aware of the requirements of the Directive. It was not clear to the Court what the Respondent was referring to as the relevant Directive in this case is neither obscure nor hidden. The Respondent did not dispute the assertion by the Complainant that he had written to the Complainant threatening retribution and demanding that the money the Complainant had been paid for his holidays under his contract be returned to the Employer. In respect of public holidays, the Respondent submitted that the 9% set out in the contract was made up of 8% for annual leave and 1% for public holidays. The Respondent disputed that the Complainant was owed payment for public holidays. He submitted that, if the Complainant was owed for public holidays, then the amount owed was €233. The Respondent submitted that in the cognisable period there were four bank holidays. The Complainant was paid for the October bank holiday. In respect of the three public holidays Christmas Day, St Stephens Day and New Year ‘s Day the amount payable to the Complainant was €420. The Respondent submitted that in December 2019 the Complainant was paid €187 on top of his base wage for public holidays leaving a nett amount of €233 owed to the Complainant. The Respondent was not in a position to provide any proof of payment in respect of the amount he said was paid in December 2019. Discussion The Respondent accepted in the course of the hearing that there had been a technical breach of the Act in respect of the annual leave in that he had not made the payment in the manner required by the Act. The Respondent sought to rely on the terms of the contract to demonstrate that he had paid the Complainant his annual leave entitlements. However, at the same time as he was seeking to rely on this element of the contract to defend the complaint before the Court, he also was writing to the Complainant demanding that the Complainant repay the money he was paid in accordance with his contract for annual leave back to the Respondent, and threatening retribution if the Complainant did not. No explanation was put before the Court as to why the Respondent believed that he was entitled to reclaim the holiday money while at the same time rely on the fact that he had paid it in the hearing before the Court. The Respondent also indicated that he was not aware that it was in breach of the Act to threaten retribution on an employee for making a complaint under the Act. The Court sees no basis up on which the Complainant could be required based on the facts before the Court to return the holiday pay, he received. The fact that the Complainant received holiday pay does not mean he is not entitled to take a claim if he believes there has been a breach of the Act, nor does it prevent the Court from awarding compensation if it determines that a breach or breaches have occurred. The Respondent accepted that in respect of the manner in which he had paid annual leave to the Complainant there has been a breach of the Act and therefore it falls to the Court to consider the issue of compensation for the breach. The Respondent submitted that payment for public holidays was included in the 9% figure set out in the contract. The Court could not find any reference to public holidays or to the fact that the 9% figure was inclusive of public holidays in the contract. The Respondent submitted in the alternative that the Complainant was owed some money in respect of public holidays. Taking all of the above into consideration the Court concludes that there has been a breach of the Act in respect of section 21 public holidays therefore it falls to the Court to consider the issue of compensation for the breach. Decision The Court determines that the Respondent was in breach of Section 19 and section 21 of the Act Therefore, the Court must consider the issue of awarding compensation to the Complainant for that contravention.
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