FULL RECOMMENDATION
PARTIES : CLANCOURT MANAGEMENT LIMITED T/A CLANCOURT MANAGEMENT DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No’s: ADJ-00027141, CA-00040869-002. This is an appeal under the Organisation of Working Time Act 1997, ‘the Act’. Mr. Cahill, ‘the Complainant’, worked as a Security Operative for Clancourt Management, ‘the Respondent’, from 2013 to 2020. Following his dismissal in September 2020, the Complainant claimed that he had not been paid for two weeks’ holidays. This was disputed by the Respondent. The Complainant lodged a complaint under the Act with the Workplace Relations Commission, ‘WRC’. An Adjudication Officer, ‘AO’, decided that the complaint was not well founded. The Complainant appealed to this Court. Summary of Complainant arguments. Part III, Sections 19 to 23 of the Act provides that an employee should be paid annual leave and public holiday entitlements and/or compensation on cessation of employment. The Complainant contends that he was not paid for his outstanding annual leave upon termination of his employment. He is due a payment of €1040 for two weeks’ leave. Summary of Respondent arguments No detail has been provided by the Complainant to back up his complaint. The Complainant had an annual leave entitlement of 20 days. In the period up to his dismissal on 3 September 2020, he was laid off for 87 days due to Covid. Taking account of that, he accrued a total of 146 days’ service from 1 January 2020 to 3 September 2020, giving him an accrued entitlement of 8 days’ annual leave. In fact, he was paid for 17 days’ leave in that period. Account was also taken of three public holidays in that period. As a gesture of goodwill, the Respondent did not seek repayment of the additional days for which he was paid. Supporting documentation is provided to the Court. This shows the leave taken by the Complainant. Also included is an application for leave, to which it was not possible to accede. This document is not signed off by the Complainant’s manager for that reason. The records show that he took two weeks’ leave subsequently. The Complainant’s attendance record is provided to the Court. In a further gesture of goodwill, the Complainant was paid for five days’ annual leave from 2014, about which he had raised a query. Witness evidence. Mr. Jason Cahill Mr. Cahill is the Complainant. The witness noted that the leave application form produced by the Respondent was not signed off. The witness denied that he had been given two weeks’ paid leave in the summer before his dismissal. He noted that no pay slips had been produced to show ‘holiday pay’. The Applicable law. Organisation of Working Time Act 1997 Entitlement to annual leave. 19.— (1) Subject to theFirst 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. (1A) For the purposes of this section, a day that an employee was absent from work due to illness shall, if the employee provided to his or her employer a certificate of a registered medical practitioner in respect of that illness, be deemed to be a day on which the employee was — (a) at his or her place of work or at his or her employer ’ s disposal, and (b) carrying on or performing the activities or duties of his or her work. (2) A day which would be regarded as a day of annual leave shall, if the employee concerned is ill on that day and furnishes to his or her employer a certificate of a registered medical practitioner in respect of his or her illness, not be regarded, for the purposes of this Act, as a day of annual leave. (3) The annual leave of an employee who works 8 or more months in a leave year shall, subject to the provisions of any employment regulation order, registered employment agreement, collective agreement or any agreement between the employee and his or her employer, include an unbroken period of 2 weeks. (4) Notwithstandingsubsection (2)or any other provision of this Act but without prejudice to the employee’s entitlements undersubsection (1), the reference insubsection (3)to an unbroken period of 2 weeks includes a reference to such a period that includes one or more public holidays or days on which the employee concerned is ill. (5) An employee shall, for the purposes ofsubsection (1), be regarded as having worked on a day of annual leave the hours he or she would have worked on that day had it not been a day of annual leave. (6) References in this section to a working week shall be construed as references to the number of days that the employee concerned usually works in a week. Records. 25.— (1) An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this Act and, where applicable, the Activities of Doctors in Training Regulations are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making. (2) The Minister may by regulations exempt from the application ofsubsection (1)any specified class or classes of employer and regulations under this subsection may provide that any such exemption shall not have effect save to the extent that specified conditions are complied with. (3) An employer who, without reasonable cause, fails to comply withsubsection (1)shall be guilty of an offence. (4) Without prejudice tosubsection (3), where an employer fails to keep records undersubsection (1)in respect of his or her compliance with a particular provision of this Act or the Activities of Doctors in Training Regulations in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer. Deliberation Employers are required to maintain records to establish that they have complied with the requirements of the Act. Attendance records for the Complainant were produced to the Court by the Respondent. Apart from an assertion, no evidence was produced to contradict these records, which indicate that the Complainant was on leave for a two week period in August 2020. Furthermore, the Respondent provided calculations to the Court to show that the Complainant’s rights under the Act in respect of annual leave had been exceeded. Again, no evidence was produced to contradict this. On the basis of records provided to the Court, there is nothing to support a complaint of a breach of the Complainant’s rights under the Act and accordingly the appeal must fail. Determination The Decision of the Adjudication Officer is upheld.
NOTE |
