ADJ-00031482

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00031482

Parties:

	Complainant	Respondent
Parties	Thomas O Sullivan	Top Security

Representatives

self

Hugh Hegarty Management Support Services (Ireland) Ltd

Complaint(s):

Act	Complaint/Dispute 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-00041964-001	14/01/2021

Date of Adjudication Hearing: 28/07/2021

Workplace Relations Commission Adjudication Officer: Brian Dalton

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The complainant lodged a complaint for non-payment of holiday entitlement after several requests were ignored. This is accepted by the employer; however, payment has been made after the complainant lodged their complaint; other than holiday pay that the employer states is not due as time to make the claim had past.

Summary of Complainant’s Case:

Initially the complainant states that he has received no holiday pay:

Hi My name is Thomas o sullivan and i have not been paid my Holiday pay from Top Security. Iworked for Top Scurity at Unit 5 Mygan Park Jamestown road dublin 11 from February to August 2020. i received my final payslip on the 13th August 2020. Since my time in Top Security i was not paid any holiday pay and i have worked out that i have worked 1211 hours for them. I have tried contacting Philip Fitzsimons The Operations manager in Top Security and there payroll team but there has been no response. It is my understaning that I should have received 1/8 of the hours i worked as Holiday pay.

The complaint form was subsequently amended on the 15th of January 2021 as follows:

Please find attached payslips from Week 8 to Week 33 in 2020 that i would like to add to the complaint along with an excel sheet of the hours i worked in this period.

Can i also raise the fact that i never received any overtime payment rate while i was working with Top Security and as you will see from my excel sheet i worked over 48 hours on numerous occasions. I also have weekly emails from Top security advising of the hours worked in each week if needed

Summary of Respondent’s Case:

In their submission and at the hearing the respondent states:

9. The claimant began employment on 20th February, 2020, it is our submission that according to the OWTA “leave year” means a year beginning on any 1st day of April; therefore it is our submission that any claim for accrued annual leave from the 2019 leave year is outside the Six Month Statutory Time Limit for referral to the WRC under section 42 of the Workplace Relations Act.

10. In relation the remaining accrued annual leave the relevant section is section 19 of the OWTA which is set out below:

19.— (1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “ annual leave”) equal to—

( 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):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.

11. Since the 1st April, 2020 the claimant worked for the respondent 972.67 (hours for which the claimant was paid 80 hours in annual leave. The claimant for 4 months of his employment is classified under section b of section 19 and accrued 13.2 hours per month. However, in line with the Act 8% of hours worked was a greater amount of annual leave so the calculations were completed in this manner and the total number of hours owed to the claimant was, 77.81 which was rounded up to 10 days.

12. On the 29th June 2021 the claimant was paid a total of €932.80 for 80 hours “Holiday Pay”; however, it needs to be noted the payslip only records 10 and for holidays the unit is days not hours.

CONCLUSION

13. The claimant was correct when he referred his complaint to the Workplace Relations Commission, at the time the complaint was made the claimant was owed and entitled payment for annual leave accrued but not taken. It was an oversight on the part of the company, and when the respondent became aware of the oversight took steps to resolve the matter, and on the 29th June 2021 believed they had done so.

Findings and Conclusions:

On the 13th of September 2021 the Adjudicator wrote to the respondent and requested the following records:

Dear Mr. Hegarty,

I am writing further to the hearing held on the 28th of July 2021 and my investigation of the complaint:

Further to section 41(10) of the Workplace Relations Act 2015:

(10) An adjudication officer may, by giving notice in that behalf in writing to any person, require such person to attend at such time and place as is specified in the notice to give evidence in proceedings under this section or to produce to the adjudication officer any documents in his or her possession, custody or control that relate to any matter to which those proceedings relate

I require the respondent employer further to 41(10) to produce the following documents as they relate to the complaint before me:

1. Complainant’s contract of employment

2. Record of hours worked per week for the duration of employment by leave year

3. Contractual required hours to be worked per week

4. Details of basic and rostered overtime hours per week

5. Details of the Shift pattern e.g. 12 hour shifts or other

6. Annual Leave days scheduled by day for the duration of the employment

7. Public Holiday entitlement for the duration of the employment with reference to section 21 of the Organisation Working Time Act and Regulation SI 475/1997

8. Details of payment for each Public Holiday and calculation with reference to hours paid and the hourly rate

9. Premium paid if any for hours paid over and above basic hours

10. All company emails relating to the request for holiday payment having regard to the fact that a payment was made after the complaint was lodged with the Workplace Relations Commission and the complainant states that his request for payment to Mr. Philip Fitzsimons the Operations Manager in Top Security and the Payroll Department was ignored.

To be produced, for my attention by Friday October 8th, 2021.

On the 8th of October 2021 the respondent provided the information as requested in a supplemental submission and answers as follows:

3. Contractual required hours to be worked per week

• It is the respondent’s position that the contractual hours work was discussed and agreed with the claimant during the course of the interview. It is the respondent’s position that an agreement was reached with the claimant that he would be provided with a minimum of 48 hours per week, and there would be an option of working additional shifts at the standard hourly rate

4. Details of basic and rostered overtime hours per week

• The details of the basic rostered overtime hours are not available; however, it is the respondent’s position that the basic and rostered overtime is included in the hours worked by the claimant per week.

6. Annual Leave days scheduled by day for the duration of the employment

• The claimant began his employment on or about the 6th February 2020 as such the respondent has calculated his Annul leave entitlements at a total 10 days. The claimant was paid these 10 days on or about the 29th June 2021

At appendix 2 of this submission it details that the employee worked 12 hours shifts.

In total the employee worked 1283.5 hours.

8. Details of payment for each Public Holiday and calculation with reference to hours paid and the hourly rate are attached at appendix 4 in addition pay for public holidays, are paid at to the claimant in accordance with his terms and conditions of employment which clearly states at paragraph 16 of the terms and conditions of employment that Public Holiday entitlement will be paid on an hourly basis over the year at rate of €0.36 for hours not worked on Public Holidays, and double time will be paid for hours worked.

With that in mind the claimant has outlined that he was not in receipt of 6 hours of Public Holiday pay for hours not worked on a public holiday, upon review and subsequent to the WRC hearing held on the 26th July 2021 and the letter of the 13th September, the respondent has identified a short fall of 6 hours for hours not worked on a public holiday. This short fall was originally requested by the claimant in or around June 2020. The respondent has now rectified the shortfall of 6 hours, by a payment made to the claimant on 7th October 2021, proof of which is attached at appendix 6.

It is the position of the respondent that all outstanding Public Holiday entitlements have now been paid to the claimant in line with section 21 of the Organisation of Working Time

A number of facts emerge from the records and submissions:

For the period of the complainant’s employment he was never rostered or scheduled off for statutory holidays

The complainant worked a standard 48 hour week.

As per the contract the hourly rates that apply are as follows:

€11.66 per hour

Double time for holidays worked

Public Holiday entitlement will be paid on an hourly basis over the year at rate of €0.36 for hours not worked on Public Holidays, and double time will be paid for hours worked.

As per appendix 2 in the supplemental submission the complainant worked 1283.5 hours

The respondent calculates that 972.67 hours that were worked accrue holiday entitlement as they fall within the relevant leave year.

The respondent excludes 310.83 hours worked from holiday entitlement based on statutory time limits.

It is not in dispute that the complainant was not paid his holiday entitlement until he lodged his complaint with the Workplace Relations Commission. It is also not in dispute that the complainant was never scheduled off for holidays while an employee with the respondent company.

The complainant states that part of the holiday pay not paid cannot be claimed as it is statute barred based on the time limits to make a claim:.

8. It is the claimant’s position that he was not paid his entitlement to annual leave at the time his employment terminated. However, the respondent’s position is matter was resolved with the payment of the outstanding annual leave issued on 29st June 2021.

with the Act 8% of hours worked was a greater amount of annual leave so the calculations were completed in this manner and the total number of hours owed to the claimant was, 77.81 which was rounded up to 10 days.

The Act states at section 19 that is entitlement to annual leave is as follows:

( 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):

The entitlement to 20 days Annual Leave derives from Directive 2003/88/EC of the European Parliament and of the Council, and the purpose of the Directive is to:

Article 1

Purpose and scope

1. This Directive lays down minimum safety and health requirements for the organisation of working time.

2. This Directive applies to:

(a) minimum periods of daily rest, weekly rest and annual leave, to breaks and maximum weekly working time; and

(b) certain aspects of night work, shift work and patterns of work.

It is also important to note recent ECJ determinations on the right to annual leave and I refer to a summary of two important decisions issued on behalf of the Court:

PRESS RELEASE No 165/18; Luxembourg, 6 November 2018,Judgments in Cases C-619/16 and C-684/16: Sebastian W. Kreuziger v Land Berlin and Max-Planck-Gesellschaft zur Förderung der Wissenschaften v Tetsuji Shimizu:

A worker cannot automatically lose his acquired rights to paid annual leave because he did not apply for leave

On the other hand, if the employer proves that the worker deliberately and knowingly refrained from taking his paid annual leave after having been given the opportunity actually to exercise his right thereto, EU law does not preclude the loss of that right or, in the event that the employment relationship ends, the corresponding absence of an allowance in lieu

Mr Sebastian W. Kreuziger was a paid legal trainee with the Land of Berlin (Germany). During the last months of this traineeship, he refrained from taking paid annual leave. After his traineeship ended, he requested an allowance in lieu of the days of leave which he had not taken, which the Land refused. Mr Kreuziger then challenged that refusal before the German administrative courts. Mr Tetsuji Shimizu was employed by the Max-Planck-Gesellschaft zur Förderung der Wissenschaften. ( Max-Planck-Gesellschaft) Some two months before the end of the employment relationship, Max-Planck-Gesellschaft invited Mr Shimizu to take his remaining leave (without forcing him to take it on the dates it had set). Mr Shimizu took only two days off and requested payment of an allowance in lieu of the annual leave not taken, which Max-Planck-Gesellschaftrefused. Mr Shimizu then brought proceedings before the German labour courts.

The Oberverwaltungsgericht Berlin-Brandenburg (Higher Administrative Court of BerlinBrandenburg, Germany) and the Bundesarbeitsgericht (Federal Labour Court, Germany) are uncertain whether EU law precludes national legislation providing for the loss of paid annual leave which is not taken, and the loss of an allowance in lieu of that leave, where the worker did not apply for leave before the employment relationship ended.

They therefore asked the Court of Justice to interpret, in that regard, the EU legislation1 according to which a worker’s right to paid annual leave of at least four weeks may be replaced by an allowance in lieu only if the employment relationship ends.

By today's judgments, the Court of Justice finds that EU law precludes a worker from automatically losing the days of paid annual leave to which he was entitled under EU law and, consequently, his right to an allowance in lieu of the leave which is not taken, solely because he did not apply for leave before the employment relationship ended (or during the reference period).

Those rights may lapse only if the employer actually gave the worker the opportunity, in particular through the provision of adequate information, to take the leave days at issue in good time, which the employer must prove he has done.

The worker must be viewed as the weak party in an employment relationship. Thus, he may be dissuaded from expressly asserting his rights against his employer if, in particular, the assertion of those rights is likely to expose him to measures taken by the employer which may affect the employment relationship to the detriment of the worker.

1 Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (OJ 2003 L 299, p. 9) and the Charter of Fundamental Rights of the European Union.

www.curia.europa.eu

On the other hand, if the employer is able to prove - and the burden is on him in that regard – that the worker deliberately and knowingly refrained from taking his paid annual leave after having been given the opportunity actually to exercise his right to it, EU law does not preclude the loss of that right or, in the event that the employment relationship is terminated, the corresponding absence of an allowance in lieu of paid annual leave which is not taken.

Any interpretation of the provisions of EU law in question which is liable to encourage the worker to refrain deliberately from taking his paid annual leave during the applicable reference or authorised carry-over periods, in order to increase his remuneration upon termination of the employment relationship, is incompatible with the objectives pursued by the introduction of the right to paid annual leave. Those objectives relate in particular to the need to ensure that workers enjoy a period of actual rest, with a view to ensuring the effective protection of their health and safety.

The Court further states that the above principles apply equally to employers which are public (such as the Land of Berlin) or private (such as Max-Planck-Gesellschaft).

In this case the employer has provided an explanation why the employee was not scheduled for his annual leave based on oversight. However, allowing for the purpose of the Directive, which relates to safety and welfare of the worker, it follows that this failure by the employee should not mean that the employee loses his right to holidays.

Section 20 of the Act states:

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

Based on the facts this provision has not been complied with.

The employer states that is has now paid the employee holiday entitlements other than what accrued in a prior annual leave year and that is statute barred having regard to section 41 of the Workplace Relations Act which states:

(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

The outstanding number of hours to accrue holidays is 310.83 hours worked and excluded from holiday entitlement based on statutory time limits.

8% of 311 hours is 24.8 hours x by hourly rate of €11.66 per hour = €289.

In Chief Constable of the Police Services of Northern Ireland and Northern Ireland Policing Board v Alexander Agnew and others [2019] NICA 32 stated at paragraph 22 when citing Sash Window Workshop Lt v King [2018] IRLR 142 that the right to paid annual leave is expressly set out in Article 31(2) of the Charter, which Article 6(1) TEU recognises as having the same legal value as the Treaties.

In Sash the following questions were referred to the CJEU:

24 In those circumstances, the Court of Appeal of England and Wales (Civil Division) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

(1) If there is a dispute between a worker and employer as to whether the worker is entitled to annual leave with pay pursuant to Article 7 of Directive 2003/88, is it compatible with EU law, and in particular the principle of effective remedy, if the worker has to take leave first before being able to establish whether he is entitled to be paid?

(2) If the worker does not take all or some of the annual leave to which he is entitled in the leave year when any right should be exercised, in circumstances where he would have done so but for the fact that the employer refuses to pay him for any period of leave he takes, can the worker claim that he is prevented from exercising his right to paid leave such that the right carries over until he has the opportunity to exercise it?

(3) If the right carries over, does it do so indefinitely or is there a limited period for exercising the carried over right by analogy with the limitations imposed where the worker is unable to exercise the right to leave in the relevant leave year because of sickness?

(4) If there is no statutory or contractual provision specifying a carry-over period, is the court obliged to impose a limit to the carry-over period in order to ensure that the application of the national legislation on working time does not distort the purpose behind Article 7?

(5) If the answer to the preceding question is yes, is a period of 18 months following the end of the holiday year in which the leave accrued compatible with the right set out in Article 7 [of Directive 2003/88]?’

In relation to questions 2 to 5 the CJEU determined:

65 It follows from all the foregoing considerations that the answer to the second to fifth questions is that Article 7 of Directive 2003/88 must be interpreted as precluding national provisions or practices that prevent a worker from carrying over and, where appropriate, accumulating, until termination of his employment relationship, paid annual leave rights not exercised in respect of several consecutive reference periods because his employer refused to remunerate that leave.

In this case the complainant has not received paid annual leave rights that should have been paid to him over two consecutive annual leave periods.

Therefore consistent with the Court of Justice of the European Union in Sebastian W. Kreuziger v Land Berlin and Max-Planck-Gesellschaft zur Förderung der Wissenschaften v Tetsuji Shimizu and Sash relating to the right of accrual that is not limitedand Dominguez du Centre Ouest Allantique [2012] 2.C.M.L.R 14 concerning the obligation to find a compatible interpretation of national law that complies with Community Law; the time limit on accrued statutory holidays pursuant to section 41 of the Workplace Relations Act only begins to run when the employment ceases. In this case the employer has failed to schedule the employee for any holidays and then only after a complaint was made to the WRC was partial payment made:

In other words, if the employment contract continues and by omission or design the employer does not schedule the employee for statutory annual leave ; Article 7 of Directive 2003/88 must be interpreted as precluding national provisions or practices that prevent a worker from carrying over and, where appropriate, accumulating, his holiday entitlement that cannot be expunged in circumstances where the employer had failed to schedule the worker’s statutory holidays. The time limit would then run only when the employment contracts ended. This means that in this case the employer cannot rely on section 41 of the Workplace Relations Act 2015 to bar the complainant from seeking payment for statutory holiday pay not received for the entirety of his employment; in so far as that claim is made within 6 months on termination or cessation of his employment.

Decision:

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.

Therefore consistent with the Court of Justice of the European Union in Sebastian W. Kreuziger v Land Berlin and Max-Planck-Gesellschaft zur Förderung der Wissenschaften v Tetsuji Shimizu and Sash relating to the right of accrual that is not limitedand Dominguez du Centre Ouest Allantique [2012] 2.C.M.L.R 14 concerning the obligation to find a compatible interpretation of national law that complies with Community Law; the time limit on accrued statutory holidays pursuant to section 41 of the Workplace Relations Act only begins to run when the employment ceases. In this case the employer has failed to schedule the employee for any holidays and then only after a complaint was made to the WRC was partial payment made:

In other words, if the employment contract continues and by omission or design the employer does not schedule the employee for statutory annual leave ; Article 7 of Directive 2003/88 must be interpreted as precluding national provisions or practices that prevent a worker from carrying over and, where appropriate, accumulating, his holiday entitlement cannot be expunged in circumstances where the employer had failed to schedule the worker’s statutory holidays. The time limit would then run only when the employment contracts ended. This means that in this case the employer cannot rely on section 41 of the Workplace Relations Act 2015 to bar the complainant from seeking payment for statutory holiday pay not received for the entirety of his employment; in so far as that claim is made within 6 months on termination or cessation of his employment

I determine that the complaint is well founded. The complainant failed to schedule the employee for annual leave pursuant to the safety and welfare objectives of the Act; that is a very serious breach of the Act. While I note that payments have been made concerning outstanding holiday entitlement an amount remains outstanding.

Pursuant to section 27 of the Organisation Working Time Act:

A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely:

( a ) declare that the complaint was or, as the case may be, was not well founded,

( b ) require the employer to comply with the relevant provision,

( c ) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years ’ remuneration in respect of the employee ’ s employment.

I award 4 weeks pay as an amount that is proportionate and dissuasive based on normal weekly pay of 48 hours x €11.66 per hour = €559.68 x 4= €2238.73 for the breach of annual leave rights guaranteed by the working time directive and provided for under statute.

In addition I order the respondent employer to pay outstanding annual leave entitlement amounting to €289 as the complaint has been made on time consistent with ECJ Jurisprudence on this matter that such rights cannot be expunged arising from the omission of the employer or by design.

I have had regard to the fact that the employer consistently failed to schedule the worker for his statutory holidays and then failed to pay him outstanding statutory holiday pay when his employment ended.

Dated: 07-03-2022

Workplace Relations Commission Adjudication Officer: Brian Dalton

Key Words:

Failure to pay annual leave