Complainant

Respondent

Parties

Bernadett  Osvath

Maybin Support Services (Ireland) Ltd t/a Momentum Support

Representatives

  Self-represented

 Dermot O’Loughlin, Alpha Employment Representative Services

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00042970-001

09/03/2021

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 15 of the European Communities (Organisation of Working Time) (Mobile Staff in Civil Aviation) Regulations 2006 - S.I. No. 507 of 2006

CA-00042970-002

09/03/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00042970-003

09/03/2021

The complainant was employed as a cleaner by the respondent contract cleaning company.  She was based at University Hospital Waterford where she worked 41.25 hours per week at a rate of €10.20 per hour.  During the Covid-19 pandemic in April 2020 the complainant could not work as she had to look after her child.  She subsequently submitted her resignation effective 31 July 2020.  The complainant claims she has not been paid for outstanding leave due to her.  She submitted her complaint to the Workplace Relations Commission on 09 March 2021.

The respondent asserts that the complainant received all her holiday entitlements. 

Preliminary Issue

The respondent submits that the complaints were submitted outside the statutory time limit and cannot be heard.

The respondent submits that these complaints were not submitted within the 6-month statutory timeline as the alleged contravention occurred when the complainant received her last payslip on 23 April 2020.  The complaint was received by the Workplace Relations Commission on 09 March 2021.

In April 2020 during the first period of Covid 19 restrictions the complainant had been unable to make childcare arrangements and so had to go on lay-off.  She subsequently submitted her resignation to the respondent, effective 31 July 2020.  The complainant expected to receive her P45 and payment for outstanding annual leave in the August 2020 payroll.

When the complainant did not receive payment for outstanding leave, she sent an e-mail on 26 August 2020 to the HR Business Partner.  In the email the complainant stated she had called the office as she was awaiting her P45 but had not received a reply.  The complainant requested “Please could you forward on the necessary documentation and my correct holiday entitlements as soon as possible.”  The complainant stated she did not receive a reply to this e-mail.

The complainant then consulted a solicitor in October 2020.  She had an online consultation, due to Covid 19 restrictions.  The solicitor made notes but did not give advice.  The complainant waited five months for the solicitor to come back to her, but he did not contact her.  It was difficult for her to get information due to all the restrictions in place.  Then she contacted the WRC.

The complainant submitted three complaints on 09 March 2021, one under the Payment of Wages Act, 1991, one under S.I. 507 of 2006 and one under the Industrial Relations Act, 1946. The complaints all relate to the issue of annual leave alleged to be outstanding at the time the complainant resigned.

Legislation

The three complaints listed above are included in the provisions of the Workplace Relations Act, 2015 at Schedule 5 Part 1 and 2 and Schedule 6 Part 1.  The relevant section of the Workplace Relations Act dealing with the submission of complaints is Section 41 ss 6 and 8 which provide:

(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.

(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), as the case may be, 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

First, the date of the alleged contravention must be established.  The respondent contends the date of the alleged contravention is 23 April 2020, that is the last day the complainant was paid.  A copy of the relevant payslip was provided by both parties.  The complainant contends that she resigned effective 31 July 2020 and expected to receive final payment for her outstanding leave in August 2020. 

I have carefully reviewed the documents submitted by both parties.  I am satisfied that in April 2020 the complainant had childcare difficulties arising from the Covid 19 pandemic restrictions.  She had to leave work on 14 April 2020 but her letter to the respondent stated “I will need to stay with him until the pandemic is over and everything can go back to normal.  As soon as it happens I’ll be able to work again.”  I am satisfied that at that time she expected to return to work.  The complainant’s payslip for fortnight 9, dated 23 April 2020, was not intended to be her final payslip.

The complainant was on lay-off from 20 April 2020 until her resignation on 31 July 2020 and was receiving the pandemic unemployment payment.  The respondent acknowledged in its submission and at the hearing that the final day of the complainant’s employment was 31 July 2020.

I am satisfied that the date of the alleged contravention was 31 July 2020, that is the date of termination when final payments would fall due.  Section 23 of the Organisation of Working Time Act provides (1) (a) 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

The complainant submitted her complaints to the Workplace Relations Commission on 09 March 2021.  The cognisable period is therefore 10 September 2020 to 09 March 2021.  The date of contravention being 31 July 2020 is clearly outside the cognisable period.  However, section 41(8) of the Workplace Relations Act permits the entertainment of a complaint submitted outside the initial 6-month period if the failure to present the complaint within time was due to reasonable cause.

Second, I must decide if the failure to present the complaint within six months of the date of contravention was due to reasonable cause.  The issue and determination of ‘reasonable cause’ was considered by the Labour Court in Cementation Skanska v Carroll DWT0338.  The Court expressed the following view:

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time”

In the instant case the complainant terminated her employment on 31 July 2020.  She expected to receive payment for the outstanding balance of her annual leave in the August payroll.  When she did not receive payment or her P45 she emailed the HR Business Partner on 26 August 2020.  She did not receive a reply.  The complainant stated that she tried to contact the office several times but received no reply.  The complainant then contacted a solicitor and had a remote meeting. She waited for advice from the solicitor but did not receive any.  She then contacted the Workplace Relations Commission.  The complainant demonstrated her intent to pursue payment for the leave which she felt was due to her, first directly with the respondent, then with a solicitor and finally with the Workplace Relations Commission. 

The Covid 19 pandemic restrictions were in place during this time, the country was in Level 5 closure from mid-October to 01 December and again from 24 December 2020 to April 2021.  These restrictions created certain difficulties in communications.  The complainant’s first language is not English, and she required the assistance of an interpreter to present her case.  All of which added to the difficulty in submitting these complaints.  The complainant stated that she was not aware of the relevant time limit, but it is well established that such lack of knowledge of itself does not constitute a reasonable cause for delay.  I am satisfied that the complainant has shown that she intended to pursue her claims and that she acted in that regard.  The lack of advice from her solicitor together with her standard of English and the exceptional pandemic restrictions presented obstacles to her submitting her complaint before the expiry of the six-month limit at the end of January 2021.  The complainant submitted her complaint on 09 March 2021.   In these specific circumstances I am satisfied that the failure to present the complaint within the relevant period was due to reasonable cause.  I decide I may entertain these complaints.

The complainant stated on the complaint form that she was employed as a cleaner with the respondent.  She had commenced employment on 08 May 2008 with another contract cleaning company and had transferred to the respondent on 02 September 2019 when the contract changed. 

The Covid 19 restrictions introduced in April 2020 resulted in the complainant having to take time off due to difficulties with childminding arrangements.  The complainant was on lay-off from 20 April 2020 and was in receipt of the pandemic unemployment payment.  The complainant submitted a letter of resignation on 29 June 2020, stating her last day of employment would be 31 July 2020.

The complainant stated on the complaint form that she rang the office about her holiday payment and sent emails to Brian Phelan and Deirdre Congdon but did not receive a reply.

The complainant provided a clarification of her claim on the complaint form received on 26 March 2020.  She stated that each year she was entitled to 4 weeks of paid holidays.  In 2020 as she worked for six months, she was entitled to 10 days leave.

In her oral testimony the complainant stated that she had worked at the hospital for eleven years, first with one company and then following a transfer in 2019 with the respondent.  Each year she was entitled to four weeks paid holidays.  The first company permitted a transfer of leave from one year to the next.  In September 2019 when the transfer to the respondent took place the complainant had thirteen days leave outstanding.  The respondent’s policy was that a maximum of five days could be transferred from year to year.  The matter of untaken leave at the time of transfer had been raised by the union.

The complainant submitted copies of leave applications forms for 2019 and 2020.  She also submitted copies of her payslips for 2020.  The complainant stated she had booked four days holidays 06 to 09 April 2020 inclusive but had cancelled them due to the Covid 19 restrictions.

A former payroll administrator, Ms Miskowiec, gave evidence for the complainant.  She stated that she was instructed not to give out information about holiday balances at the time of the transfer.  She had had the holiday planners for 2019 in her office and the balance for the complainant at the time of transfer was thirteen days.

The complainant’s claim is for payment for ten days holidays not paid to her.

The respondent is a company employing more than 2,500 people supplying high standard soft services to businesses and organisation based in the UK and Ireland.  There was a transfer of undertaking on 02 September 2019 at which time the complainant transferred to become an employee of the respondent company.

The respondent asserts that the complainant was paid her full holiday entitlement, both statutory and contractual as follows:

2019 Holiday Entitlement (including carry-over from ISS):  83.07 hours

2020 Holiday Entitlement to 22 April:                                      55.92 hours

Total Entitlement 2019/2020:                                                   138.99 hours

2019 Holidays Paid:                                                                       33.00 hours

2020 Holidays Paid:                                                                      107.25 hours

Total Paid:                                                                                      140.25 hours

The complainant was overpaid by 1.26 hours.

The respondent asserted that at the time of the transfer the employee records provided by the transferor gave a holiday balance for the complainant of 47.96 hours and 35.11 hours carried forward, in total 83.07 hours, all of which was paid leave was provided to the complainant.

The respondent submitted copies of the complainant’s payslips dated, 07 November 2019, 16 January, 30 January, 09 April, and 23 April 2020.

The respondent asserts the complainant has been paid for her full leave entitlement.  As the complainant was on lay-off from 20 April to 31 July 2020 no annual leave accrued for that period.

The respondent submits the claim should be rejected.

CA-00042970-001

Complaint submitted under the Payment of Wages Act, 1991.

The complainant submits that she was not paid for holidays due to her at the date of termination, 31 July 2020.  The complainant claims she was due payment for holidays accruing to her between January and July 2020.  The complainant’s last payment from the respondent in fortnight 9, dated 23 April 2020 did not contain payment for holidays.  The complainant expected to be paid for outstanding holidays in August 2020 after her resignation on 31 July 2020.

Legislation

Section 5 of the Act provides as follows:

5.— (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.

(2) …

(3) …

(4) …

(5) …

(6) Where— (a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or (b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee, then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

In this case the complainant claims she was not paid wages by the respondent that were properly payable to her for outstanding annual leave.

I have carefully reviewed the documents submitted by both parties.  It is common case that the complainant transferred to the respondent on 02 September 2019.  The complainant was on lay-off from 20 April 2020 until 31 July 2020, her date of termination. 

The holiday request forms provided by the complainant show that she applied for the following leave – 4 days in October 2019, 3 days in early January 2020, 5 days in late January 2020 and 5 days in March 2020.  A total of 17 days. 

The payslips provided by both parties show the complainant was paid holiday pay for 33 hours (4 days) on 07 November 2019, 24.75 hours (3 days) on 16 January 2020, 41.25 hours (5 days) on 30 January 2020 and 41.25 hours (5 days) on 09 April 2020.  I am satisfied that the complainant took 17 days leave between October 2019 and the end of March 2020 and was paid the wages properly payable to her for those leave days. 

The carry over leave notified to the respondent at the time of transfer plus the leave accrued between 02 September 2019 and 20 April 2020 amount to 17 days.  I find the complainant was paid the correct wages properly payable to her by the respondent in respect of annual leave.

The complainant raised the issue of the amount of annual outstanding at the date of transfer to the respondent being incorrect.  I am satisfied the respondent paid the complainant the correct wages for annual leave carried forward based on the information it received from the transferor at the time of transfer in September 2019.

The complainant claims she was due payment for leave accruing to 31 July 2020.  The complainant was on lay-off from 20 April to 31 July 2020 and in receipt of the pandemic unemployment payment.  During a period of lay-off the employee remains an employee with certain contractual right but does not accrue annual leave during the period of lay-off.  The complainant did not accrue annual leave between 20 April and 31 July 2020.

CA-00042970-002

Complaint submitted under Regulation 15 of the European Communities (Organisation of Working Time) (Mobile Staff in Civil Aviation) Regulations, 2006 - S.I. No. 507 of 2006.

The complainant was not employed in civil aviation.  I believe she checked this box on the complaint form in error.  It is more likely that she intended to check the box above which states “I did not receive my paid holiday/annual leave entitlement (Organisation of Working Time Act, 1997”.

The complainant did not make a separate submission on this complaint as it arises from the same circumstances as the above claim under the Payment of Wages Act.  The claim is for ten days annual leave for the period January to 31 July 2020.

The Organisation of Working Time Act, 1997 provides the following in relation to annual leave:

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.

Section 2 of the Act defines the leave year as:

“leave year” means a year beginning on any 1st day of April

In this complaint the relevant leave years are from 01 April 2019 to 31 March 2020 and 01 April 2020 to 31 July 2020.  As already established the complainant was granted 17 days paid leave between September 2019 and March 2020.  The respondent was not the employer between April and September 2019.  I am satisfied the respondent has provided the complainant with the correct paid annual leave accrued during the period 02 September 2019 to 20 April 2020.  In addition, the respondent provided the complainant with the paid leave notified to it by the transferor at the date of transfer.  I find this complaint is not well founded.

CA-00042970-003

Complaint submitted under Section 45A of the Industrial Relations Act 1946.

The complainant did not make a separate submission on this complaint as it arises from the same circumstances as the above claim under the Payment of Wages Act.  The claim is for ten days annual leave for the period January to 31 July 2020.

The complainant claims she did not receive her paid holiday/annual leave entitlements set out in the Employment Regulation Order (ERO) relating to contract cleaning.  The relevant ERO is contained in S.I. 548/2016.  That ERO provides the same entitlement to annual leave as contained in section 19 of the Organisation of Working Time Act.  Under the terms of this ERO the complainant was entitled to 4 weeks paid annual leave in a leave year.

As already established the complainant was granted 17 days paid leave between October 2019 and March 2020.  The respondent was not the employer between April and September 2019.  I am satisfied the respondent has provided the complainant with the correct paid annual leave accrued during the period 02 September 2019 to 20 April 2020.  In addition, the respondent provided the complainant with the paid leave notified to it by the transferor at the date of transfer.  I find this complaint is not well founded.

Preliminary Issue

I am satisfied that the complainant has shown that she intended to pursue her claims and that she acted in that regard.  The lack of advice from her solicitor together with her standard of English and the exceptional pandemic restrictions presented obstacles to her submitting her complaint before the expiry of the six-month limit at the end of January 2021.  The complainant submitted her complaint on 09 March 2021.   In these specific circumstances I am satisfied that the failure to present the complaint within the relevant period was due to reasonable cause.  I decide I may entertain these complaints.

CA-00042970-001

Complaint submitted under the Payment of Wages Act, 1991.

I have carefully considered the oral and written evidence presented to me in this case.  I am satisfied that the complainant took 17 days leave between October 2019 and the end of March 2020 and was paid the wages properly payable to her for those leave days.  The carry over leave notified to the respondent at the time of transfer plus the leave accrued between 02 September 2019 and 20 April 2020 amount to 17 days.  The complainant did not accrue annual leave during the period of lay-off, 20 April to 31 July 2020.  I find the complainant was paid the correct wages properly payable to her by the respondent in respect of annual leave.  I decide this complaint is not well founded.

CA-00042970-002

Complaint submitted under Regulation 15 of the European Communities (Organisation of Working Time) (Mobile Staff in Civil Aviation) Regulations 2006 - S.I. No. 507 of 2006.

The complainant was not employed in civil aviation. The complainant intended to check the box “I did not receive my paid holiday/annual leave entitlement (Organisation of Working Time Act, 1997”.

The claim is for ten days annual leave for the period January to 31 July 2020.

The respondent was not the complainant’s employer between April and September 2019.  I am satisfied the respondent has provided the complainant with the correct paid annual leave accrued during the period 02 September 2019 to 20 April 2020.  In addition, the respondent provided the complainant with the paid leave notified to it by the transferor at the date of transfer.  I decide this complaint is not well founded.

CA-00042970-003

Complaint submitted under Section 45A of the Industrial Relations Act 1946.

The claim is for ten days annual leave for the period January to 31 July 2020.

As already established the complainant was granted 17 days paid leave between September 2019 and March 2020.  The respondent was not the employer between April and September 2019.  I am satisfied the respondent has provided the complainant with the correct paid annual leave accrued during the period 02 September 2019 to 20 April 2020.  In addition, the respondent provided the complainant with the paid leave notified to it by the transferor at the date of transfer.  I decide that there was no breach of the ERO, and that this complaint is not well founded.

Annual Leave

Payment for leave on termination of employment

Time Limit

Reasonable Cause