Complainant

Respondent

Parties

Colm  Walsh

Alan Lynch  T/A Alan Lynch Construction

Representatives

  Appeared In Person

Ken O Sullivan, instructed by  ODS Solicitors LLP

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-00043726-001

23/04/2021

This matter was heard by way of remote hearing pursuant to Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and SI 359/2020, which designates the WRC as a body empowered to hold remote hearings.

On 23 April 2021, the Complainant, a Carpenter submitted a complaint in accordance with the Organisation of Work Act, 1997. He submitted that he had not received his annual leave entitlement. The Complainant represented his own case, submitted a written submission and was   accompanied by a colleague in support. The Complainant subsequently resigned his employment on 26 April 2021.

The Respondent operates a Construction Business and was represented by Mr Ken O Sullivan, BL instructed by Annette Sheehan. The Respondent by way of written submission, denied the claim.

Counsel for the Respondent advanced some Preliminary arguments in response to the claim.

Both parties considered my address on the post Zalewski v Adjudication Officer and Or’s, at the Supreme Court in April 2021 and both parties signalled their preparedness to proceed with the case in hand.

The Complainant undertook to forward his letter of resignation cited as April 26,2021 at 11.37hrs.

At the time of hearing, the Respondent written submission had not been processed to electronic file stage and Counsel for the Respondent read the submission into the record. The Complainant was given the opportunity to address this at hearing.

Preliminary Issues:

The Respondent submitted that the Complainant resigned his employment on 21 April,2021 which was accepted on 26 April 2021.

The Respondent took issue with the Complainants written submission as it pertained to extraneous matters of health and safety on site and constructive dismissal. Counsel argued that these matters were not properly before the WRC and were outside the jurisdiction allowed in the case. He confirmed that the Respondent had approached the hearing to address the claim on annual leave alone and that this was governed by a statutory time limit assigned to the cognisable period, that of 24 November 2020 to 23 April 2021.

He argued that the claim for annual leave associated with the 2016-time frame was statute barred and no application had been made for an extension in accordance with S 41(8) of the Workplace Relations Act,2015. He outlined that the commencement of annual leave year was April 1 annually and cited an extract from Maeve Regan in Employment Law.

The Complainant did not recognise the statutory time limits associated with Section 41(6) or Section 41(8). He accepted that he resigned his post on 26 April 2021. He carried a heightened level of disappointment on his experiences at work and sought a resolution for the shortfall in annual leave to 2011.He clarified that it was not his intention to advance a case for constructive dismissal and did not have any other live complaints before the WRC.

The Complainant worked as a Carpenter with the Respondent business from 2011. He worked a 42.5-hour week. He resigned his position on 26 April,2021.

By means of his complaint form, he outlined that he had received on average 15 days holidays per year as was company policy. He confirmed that the Respondent owed him 31 days leave and disputed those 21 days resolved the matter.

The complainant submitted that he had never received a contract of employment or pay slips during his tenure. He confirmed that he had received an accumulation of 10 years of pay slips during the final two weeks of his employment, but these were not reflective of annual leave received.

He had attempted to engage with his former employer on annual leave but feared retribution when he was threatened as a result.

The Complainant referenced a high level of dissatisfaction with his working conditions.

The Complainant outlined that he had experienced a shortfall of annual leave throughout his employment. He submitted details at hearing.

He submitted that he had raised a grievance on 16 August 2020 and had contacted the accountant prior to his resignation.

It had taken 4 weeks in early March 2021, for him to secure requested pay slips reaching over a 10-year period and those pay slips did not reflect payment of annual leave, leaving him at a loss to understand whether he had received his statutory allowance of annual leave or not.

On 14 April 2021, together, with Mr A, witness in the case, he visited the Respondents home to process this grievance. He submitted that he had been threatened and the matter was not discussed further, prior to his resignation.

During cross examination, the complainant re-affirmed his August grievance. He confirmed that he had not been able to raise the matter sooner as he was working full time and feared retribution. He had been informed by his Foreman that he was owed increased leave, yet he was also informed by the Respondent, that company policy was to pay 15 days leave annually

Evidence of Mr A, Colleague

Mr A was a colleague of the complainant. He accompanied the complainant to the respondent’s home to secure monies owed to both for unpaid holidays over the years. The meeting lasted 1-2 minutes. He saw that the complainant was threatened by the respondent and heard him say that his name would be blackened.

He clarified that the response made to this was that he and the complainant just left.

He was unsure how many fellow employees were in existence but qualified by saying that both he and the complainant were the first to start.

During cross examination, Mr A clarified that there was no evidence of him raising an issue on annual leave.

In closing, the complainant sought to settle the case for 41 days leave to afford closure on the chapter.

The Respondent operates a Construction Company and disputes the claim made. Counsel sought a direction in the case as he disputed that the Complainants reference to 2016 claim for annual leave as valid. He confirmed that a cheque was ready to pay the complainant 21 days leave gross.

I addressed the parties by stating that the case surrounded a complainant who said that he experienced negative behaviour when he raised the topic of Annual Leave at the Respondent doorstep. I believed that in administering justice in the case, it was necessary for me to hear the entire circumstances from both parties in the case.

Evidence of the Respondent.

The Respondent confirmed that the complainant was good at his job and had not articulated any issue on annual leave prior to February, 2021.the Complainant had wanted to leave employment and had not raised a grievance. He had, however, sought a severance payment.

The Respondent outlined that on the Saturday evening prior to Mother’s Day, he was approached at his home by the Complainant and Mr A. The Complainant sought a payment of €10,000 and said he would leave if he received this. This was replicated by Mr A.

The Respondent thought about it and asked them both to leave and not visit him at home again.

He told the hearing that he had kept a payment of €2,640 in recognition of 20 days unpaid leave on hold subject to these proceedings. The Complainant had refused to work on several occasions 2020/2021.

During cross examination, he confirmed that pay slips were available on request. He had assisted the complainant in that regard when he secured his Mortgage. He agreed that holiday pay was not specifically delineated on the pay slips. He said he planned to issue contracts, but Covid Lockdown prevented this.

The Complainant put the unpaid leave during 2016 to the Respondent who replied that he was paid by two separate cheques which were   both cashed on 11 July 2016.

In closing, Counsel for the Respondent reaffirmed the presence of the 21 days annual leave payment remaining on hold for the complainant. This covered any liability owed to the complainant. The core of the complainant’s case fell well outside the six months extending legislation and this was fatal to his case.

I have been requested to make a decision on annual leave in this case. In reaching my decision, I have had regard for both parties written and oral submissions in addition to the evidence adduced.

Preliminary Issue:

First, I must address the Preliminary Issue of the parameters of the claim. The claim was submitted in accordance with the Organisation of Working Time Act, 1997 at 14.05hrs on 23 April 2021. The Complainant accepted that he had formally resigned on 26 April 2021. I asked for confirmation of that document as the Respondent case had been that a resignation had been submitted on 21 April and accepted on 26 April 2021.

I found a copy of an email sent from the complainant to the respondent dated 26 April 2021 at 11.37 hrs. This email communicated a resignation with immediate effect, citing a reference to an impasse on annual leave and a reference to Constructive Dismissal. The email also cited concerns regarding sanitary and safety issues on site. I accept this as evidence of cessation of employment, while mindful that the complainant had not attended his work post the raising of restrictions on April 5, 2021.

The Complainant clarified that his main concern was unpaid annual leave which he believed he had been deprived of during his employment. He clarified that he did not have any separate employment claim live at WRC.

The claim before me predated the date of resignation and thus cessation of employment.

I find that I am obliged to consider this complaint through the prism of section 19 of the Organisation of Working Time Act, 1997 alone. The issue of a claim for constructive dismissal is not properly before me as the complainant had not resigned by 23 April of this year. In addition, while I appreciate that the complainant carried a high level of dissatisfaction with his working environment. These issues are not properly before me.

On the question of statutory time limits, I refer to Section 41(6) of the Workplace Relations Act,2015

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

(7) Subject to subsection (8), an adjudication officer shall not entertain a dispute referred to him or her under this section if—

In this case, the complainant had a strong sense of not having received his correct annual leave during his employment. He sought that I take account of his entire tenure. I explained the statutory restraints and sought his position on why he delayed in his claim?

He explained that he had been busy working full time during his tenure and feared retribution if he progressed his unease at the gap of annual leave. He did not accept the limitations of the legislation, as discussed at hearing.

He stated that he believed he had been impeded by the subsisting vacuum surrounding a contract or pay slips. However, it was the period of 2016 annual leave, which incensed him most. 

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration) if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

There is a provision for me to grant an extension of time in this case in accordance with section 41(8) of the Act. This discretion is linked to a cogent argument being   made by the complainant for a delay on reasonable cause. The test for this consideration is outlined in Cementation Skanska and a   Worker at the Labour Court DWT 0425 

The Complainant did not advance this cogent argument and I cannot accept that he can succeed in securing an extension of time in this case. I appreciate that he may have been impeded in part by the lack of work-related documentation such as a contract or pay slips. He received an abundance of pay slips in the month prior to his resignation. However, I cannot accept that the complainant was busy and feared retribution as a cogent argument for granting an extension on reasonable cause. I was looking was for a reason that explained the delay and afforded an excuse for the delay.

The Claimants failure to present his claim within the six months’ time limit must have been due to the reasonable cause relied upon. The Complainant has referenced an anticipated fear of retribution rather than a consequential fear having attempted to resolve the annual leave. For me, this does not meet the test in Cementation. The Complainant has not demonstrated reasonable cause.

The cognisable period of this case is therefore   24 October 2020 to 22 April 2021.

I will proceed to now explore the substantive case.

Substantive Case:

Section 19 of the Organisation of Working Time Act, 1997 provides that an employee shall be entitled to paid annual leave

(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):

Section 20 of the Act places considerable responsibility on the employer to allocate that leave while having regard for the employees need to reconcile work, any family responsibilities and opportunities for rest and recreation available to the employee.

I am bound to consider the cognisable period as outlined above as I cannot apply the terms of section 23 as the employment had not yet ceased at the time the claim was furnished to WRC on 23 April 2021. Section 23 provides for cesser pay and has provision allowing for a defined period of retrospective application.

In the instant case, the Respondent has already raised a cheque for €2,640 for the complainant and has delayed forwarding this amount until the outcome of this case.

I note that the complainant prefaced his case with a reference to being threatened by the respondent for raising his concerns regarding annual leave. Mindful of the realms of section 26 of the Act, I probed this evidence.

 I noted that, when provided with the opportunity to address this in the context of cross examination, the complainant did not test the respondent’s evidence on the request for severance. He did not dispute that he had attended the respondent’s home, however, there was a dichotomy in terms of the recollected purpose of that visit. The Complainant recalled the visit was to address annual leave, yet the respondent recollected that the complainant was seeking a severance payment and had refused to return to work after the restrictions were lifted in the building trade on 5 April 2021. I set this encounter, on the balance of probabilities as 13 March 2021, the day before Mother’s Day.

A careful perusal of the extracts of texts /emails points to the Respondent asking the complainant to explain his claim for a variation of 41 annual leave days to 66 annual leave days. The Complainant was aggrieved that he was being asked to ventilate his claim once he resumed work via a grievance. He did not follow through on the invitation to resolve the matter locally. I appreciate that he is engaged in a newly formed self-employment, however, this was a matter deserving of an attempt at local resolution prior to referral to a third party.

There is considerable conflict in how both parties recalled the “door stop “meeting. I have resolved this conflict in favour of the respondent as I found his description of the meeting clear and compelling. I was taken by his stated disappointment at being requested to apply a severance payment for the complainant. I accept that annual leave did not form a basis of this discussion. I found the complainants evidence to be inconsistent. While he alluded to feeling threatened in his pursuance of annual leave, he did not demonstrate credible facts surrounding this assertion.

I have a certain sympathy for the complainant in this case, I appreciate that he worked without pay slips, contract or a veritable grievance procedure for many years. This is an unenviable position, which should not be repeated. I was not happy with the records of annual leave maintained by the Respondent. The records relied on ought to have prompted an earlier engagement. However, based on the evidence before me, I cannot establish a breach in Section 19 of the Act within the cognisable period of this claim.

I note that the respondent is prepared to forward payment for 21 days annual leave to coincide with the cessation of the complainant’s employment. This post dates the terms of this claim and should not be disturbed by my findings here.

I have found that by confirming an intention to pay the shortfall in the annual leave covering the cognisable period, the respondent has complied with his obligations under the Act,

I find the instant claim to be not well founded.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 27 of the Organisation of Working Time Act, 1997, requires that I decide in relation to the complaint in accordance with Section 19 of that Act.

I find the claim is not well founded.

Annual Leave over the course of 10 years of employment