Complainant

Respondent

Parties

Rory  Cahill

Synergy Security Solutions

Representatives

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-00051485-001

01/07/2022

The complainant is employed as a security officer with the respondent.  This complaint concerns the complainant’s paid annual leave entitlement.

The complainant’s employment transferred to the respondent in March 2021 pursuant to the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003.

The complainant’s weekly working hours vary on a week 1, week 2 basis; he works 48 hours in week 1 and 36 hours in week 2.

The complainant contacted the respondent’s payroll department in January 2022 regarding a holiday pay issue.  A resolution was reached whereby the respondent agreed to pay the shortfall in holiday pay identified by the complainant in the next pay run, and it was further agreed that going forward the complainant would be paid holiday pay of 45 hours for a week he took holidays.  It was confirmed by the respondent at this time that the complainant had 20 days of annual leave or 4 weeks to take in 2022. 

In June 2022, the complainant noticed on the employee portal holiday app that his holiday balance showed him having been paid for 93 hours of holidays although he had only taken 1 week’s holidays at that point, in respect of which he had been paid 45 hours.  When the complainant queried this with the respondent, he was informed that he had 90 hours or 10 days (based on a 45-hour week) of holidays left to take in 2022.  The respondent subsequently apologised to the complainant for an error made in the January 2022 communications with the complainant which the respondent said was because it did not realise that the complainant had received payment for annual leave at the time of the communications.

The complainant’s pay for annual leave taken in 2021 was based on a 48-hour week; in 2022 annual leave was paid by reference to a 45-hour week.

The complainant’s complaint to the Workplace Relations Commission concerns the agreement made between him and the respondent in January 2022 regarding his holiday entitlement for 2022 and the subsequent changing of that agreement by the respondent without notification to the complainant.

The complainant confirmed that his complaint concerned his holiday entitlement for 1 January 2022 to 31 December 2022.

He further advised that he is rostered for shifts on the system and that a supervisor then checks that he is on site for the scheduled shift.  All data regarding hours of work is recorded on the TelMe application.

The respondent submitted that its payroll system operates automatically to calculate the annual leave an employee is entitled to.  The system calculates 8.3% of every hour worked by the employee and that is then banked as annual leave entitlement for the employee.  Mr Hennessy confirmed that holiday entitlement starts to accrue from the first hour of work and that it is not capped.  It was submitted that where an employee works a set pattern, as the complainant does, it is very straight forward to calculate an employee’s annual leave entitlement. 

The respondent advised that it had taken the information from its payroll system for the complainant and broken it down shift by shift on its review of the complainant’s complaint.

The respondent’s review of 1 January to 31 December established that the complainant’s annual leave had been calculated correctly.

The respondent advised that it would not be possible to give an annual leave benefit of 4 weeks at 45 hours per week as that accrual would not have been done on the system as the complainant’s average weekly working hours are 42 hours per week.  The complainant works a very consistent roster of 48 hours in week 1 and 36 hours in week 2.  The only way to accrue 4 weeks of 45 hours in annual leave entitlement on the system is if the complainant’s weekly working hours were to increase.

The complainant’s average weekly hours of work are 42 hours, and his annual leave entitlement is 4 working weeks in a leave year which amounts to 168 hours. 

Generally, the respondent’s payroll works off the employee’s average working week to pay an employee on annual leave however if an employee specifically requests using more or less hours from their annual leave bank of hours, payroll will facilitate that and accommodate an individual request.

I explained to the parties at the outset of the hearing my jurisdiction under the Organisation of Working Time Act 1997 (the “1997 Act”) in respect of complaints concerning annual leave, how it is confined to statutory entitlements and does not extend to any contractual entitlements.

The law

Section 19 of the 1997 Act sets out 3 different ways for calculating annual leave entitlement, based on an employee having worked hours in the leave year. 

Section 19(1) of the 1997 Act provides:

“. . . 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)”.  

In relation to taking annual leave, section 20 of the 1997 Act provides as follows:-

“(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

(iii) where the employee—

(I) is, due to illness, unable take all or part of his or her annual leave during that leave year or the period specified in subparagraph (ii), and

(II) has provided a certificate of a registered medical practitioner in respect of that illness to his or her employer,

within the period of 15 months after the end of that leave year.”

Section 2 of the 1997 Act defines the leave year as a year beginning on any 1st day of April.

Sections 41(6) and 41(8) of the Workplace Relations Act 2015 set out the relevant time limits for referral of complaints to the Workplace Relations Commission; a complaint must be presented within 6 months of the date of contravention to which the complaint relates, which may be extended to 12 months where it is established that the failure to present the complaint within 6 months was due to reasonable cause.

Section 20(2)(b) of the 1997 Act is also worth noting in the context of this complaint as it is clear from the submissions of the parties and the documentation before me that clarifications were sought, and information provided, as to how the employee’s pay in respect of annual leave was/is to be calculated.  Section 20(2)(b) of the 1997 Act provides that pay in respect of an employee’s annual leave shall be at the normal weekly rate or, at a rate which is proportionate to the normal weekly rate.

Application of the law

This complaint under the 1997 Act was presented to the Workplace Relations Commission on 1 July 2022 and concerns the complainant’s annual leave entitlement for 1 January 2022 to 31 December 2022.

By reason of the definition of a leave year in the 1997 Act and the time limits in the 2015 Act, as set out above, the cognisable period covered by this complaint is the leave year commencing 1 April 2021 to 31 March 2022.

Any complaint in respect of the leave year 1 April 2020 to 31 March 2021 has been presented outside the time limits for referral of a complaint and any complaint in respect of the leave year 1 April 2022 to 31 March 23 was premature in circumstances where that leave year was ongoing at the time of referral of the complaint.

The evidence submitted by the parties was presented by reference to a calendar year as this is the basis on which the respondent calculates annual leave entitlement for its employees. 

I have fully reviewed the respondent’s record of the complainant’s hours of work, taken from the respondent’s roster and payroll system, and cross-checked it with the documentation submitted by the complainant evidencing his hours of work from 1 April 2021 to 31 March 2022.  These records match in terms of the hours worked by the complainant. 

I have also fully reviewed the complainant’s documentary evidence of the annual leave taken by him and the pay he received in respect of that annual leave for the period 1 April 2021 to 31 March 2022, and cross-checked it with the respondent’s record of annual leave taken by the complainant for the same period.  These also correspond.

I have established that the complainant benefitted from annual leave and annual leave pay for 195 hours in the leave year 1 April 2021 to 31 March 2022. The complainant’s weekly working hours in employment were fixed at 48 hours in week 1, 36 hours in week 2.  Accordingly, I am satisfied that the complainant received, and was paid, his statutory annual leave entitlement of 4 working weeks for the relevant leave year.  I am further satisfied that the complainant received his normal weekly rate in pay in respect of annual leave taken during this period.

Conclusion

I do not find there to have been a breach of the complainant’s statutory entitlements to annual leave in respect of the leave year 1 April 2021 to 31 March 2022.

I do not have jurisdiction to consider a complaint referable to a period outside of the cognisable period or a complaint regarding any agreement between the parties for more favourable annual leave arrangements than the statutory entitlement.  

For the reasons outlined above, my decision is that the complaint under the Organisation of Working Time Act 1997 is not well-founded.

Annual leave entitlements – Leave year – cognisable period