ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00039095

Parties:

Complaint:

Date of Adjudication Hearing:  04/04/2023

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Procedure:

This complaint was referred to the Workplace Relations Commission (hereinafter ‘WRC’) pursuant to Section 41 of the Workplace Relations Act 2015 on 17th May 2022.  Following delegation to me by the Director, I inquired into this complaint and gave the Parties an opportunity to be heard and to present any relevant evidence.  I held a face-to-face hearing at Lansdowne House on 16th December 2022. The Complainant represented himself and was in attendance.  As there was no appearance on behalf of the Respondent who had since entered into voluntary liquidation, the matter was adjourned to put the assigned Liquidator on notice of a rescheduled hearing.  I held a further remote hearing on 4th April 2023, pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020. The Complainant and a Joint Liquidator from Azets Ireland were in attendance.  No evidence was proffered on behalf of the Respondent and the Liquidator confirmed that any compensation awarded on foot of this complaint would be processed for reimbursement under the Insolvency Payments Scheme operated by the Department of Social Protection.

The hearing was held in public pursuant to Section 41(13) of the Workplace Relations Act 2015 as amended by the Workplace Relations (Miscellaneous Provisions) Act 2021.  The Complainant’s evidence was taken under oath and the Parties were made aware that their names would be published within the decision.  All of the evidence and documentation has been considered.

Background:

The Complainant was employed by the Respondent between 27th January 2022 and 30th April 2022.  He claimed that he had not been paid €1312 in lieu of accrued annual leave due upon the cessation of his employment.  The Respondent is in voluntary liquidation and this complaint was unopposed.

Summary of Complainant’s Case:

The Complainant gave evidence under oath confirming the factual basis for his complaint under Section 27 of the Organisation of Working Time Act 1997.  He confirmed that on 27th January 2022, he commenced employment with a new fine dining Restaurant operated by the Respondent.  He initially carried out general duties before he was appointed as the Head Chef.  He did not receive any contract of employment or written statement of terms of employment confirming his hours and salary.  He regularly worked in excess of 50 hours per 5-day week and for the 13 week period prior to the termination of his employment, was paid a weekly average of €1093 gross.  Unfortunately, from early on there were difficulties with the operation of the Restaurant such that the Complainant gave three weeks’ notice of his resignation.  He worked out his notice and left on 30th April 2022.  A week later, the Restaurant closed down and the Respondent has since entered into voluntary liquidation.

The Complainant confirmed that upon the termination of his employment on 30th April 2022, he was owed pay in lieu of his annual leave entitlement for the whole period of his employment with the Respondent.  Additionally, he was owed a paid day of annual leave at €219 for working on Mother’s Day.  Pay in lieu of his leave should have been discharged upon the cessation of employment but has not been paid to date notwithstanding written reminders to the Respondent and acknowledgment.  Accordingly, he referred this complaint to the WRC on 17th May 2022 and seeks compensation in respect of same.  He confirmed that he was not pursuing complaints about other breaches of statutory provisions.  He submitted vouching of his pay for the whole period of his employment.

Summary of Respondent’s Case:

The Respondent did not attend at the hearing and hence no evidence was adduced on its behalf. 

Findings and Conclusions:

It is necessary to examine the facts giving rise to this complaint in light of the relevant legislative provisions.  Section 19 of the Organisation of Working Time Act 1997 sets out an employee’s annual leave entitlements and methods of calculation and specifically Section 19(1) provides as follows:

“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 percent of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):”  This Section further provides that if more than one method of calculation applies and the leave is not identical, the leave which the employee shall be entitled shall be whichever of those periods is the greater.

Section 20 of the Act provides for the times and pay for annual leave with Section 20(2) providing: “The pay in respect of an employee’s annual leave shall- (b) be at the normal weekly rate or, as the case may be, at a rate which is proportionate to the normal weekly rate,” and Section 20(4) provides: “In this section “normal weekly rate” means the normal weekly rate of the employee concerned’s pay determined in accordance with regulations made by the Minister for the purposes of this section.”

Section 23 of the Act requires an employer to make payment in lieu of accrued annual leave to an employee upon the cessation of their employment, with Section 23(1)(a) providing: “Where- (i) an employee ceases to be employed, and (ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee, the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave.”

S.I. No. 475/1997 - Organisation of Working Time (Determination of Pay For Holidays) Regulations 1997 provides for the calculation of the normal weekly rate of pay.  Applicable to the instant case, Paragraph 3(3)(a) provides that where an employee is not paid by reference to a time rate or a fixed rate or salary or any other rate that does not vary in relation to the work done by him, the normal weekly rate of pay is “equal to the average weekly pay (excluding any pay for overtime) of the employee calculated over the period of 13 weeks ending immediately before the annual leave (or the portion thereof concerned) commences or, as the case may be, the cesser of employment occurs.”

The Complainant claimed that the Respondent had not discharged his pay in lieu of accrued annual leave upon the cessation of his employment on 30th April 2022.  I found his evidence under oath as vouched by pay documentation to be wholly credible.  In terms of calculation of pay in lieu of annual leave in accordance with the applicable statutory provisions, he worked at least 117 hours for three months and one third of a working week for each month equates to one week’s leave.  His normal weekly rate of pay is determined by the 13 week average prior to the cessation, being €1093.  He is also owed pay in lieu of a day off at €219, thus a total of €1312.  I am satisfied that the non-payment of same constitutes a contravention of Section 23 of the Organisation of Working Time Act 1997.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to this complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.  I find this complaint to be well-founded for the reasons set out aforesaid.  Once a complaint has been declared well-founded, Section 27(3) of the Organisation of Working Time Act 1997 provides: “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 consider it just and equitable having regard to all of the circumstances to direct the Respondent to pay the Complainant compensation in the sum of €1500 for this breach.  For the purposes of payment, this is a lump sum payment of compensation and is not dependent upon time or weeks.

Dated:   20th April 2023

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Key Words: Sections 19, 20, 23 & 27 of Organisation of Working Time Act 1997 - unpaid annual leave