Complainant

Respondent

Parties

Maria  Erokhin

Supervalu

Representatives

  Self

Mark Comerford IBEC

Act

Complaint Reference No.

Date of Receipt

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

CA-00051590-001

07/07/2022

The Complainant contends that she did not receive her outstanding annual leave entitlements when she resigned from her employment with the Respondent.

The Respondent refutes this complaint in its entirety. 

The Complainant submits that she did not receive the appropriate payment for annual leave accrued during week 22 of her employment which was her notice period.

The Complainant submits that before the termination of her employment, she had two weeks’ worth of annual leave to use up. Due to her finding a new job, she requested termination of her position with the Respondent as soon as possible.  She was told that she could finish without working her notice as the Respondent was able to cover her shifts.

The Complainant had been earning around €260 each week working 18/20 hours. When she was paid for her outstanding annual leave, she got €176.40 back. The Complainant said that this was in respect of 21 weeks.  The Complainant contends that her notice period should have been treated as a period of employment which would attract annual leave and, therefore, she is still owed annual leave for her notice period.

When the Complainant contacted her manager on Monday 13 June 2022 via text to arrange a meeting, he told her that the HR manager was on holidays and that he is only available between 10am and 11am.

The Complainant submits that she texted her manager with her concerns about her outstanding annual leave.  The Complainant submits that the manager saw her text but ignored it and did not reply to her.  The Complainant submits that she gave him until Friday that week to get back to her, but he failed to do so.  She then informed him via text that she would be submitting a complaint to the WRC.  She did not receive a response to her text.

Background

Musgrave Operating Partners Ireland (MOPI) operates 22 SuperValu supermarkets in the Republic of Ireland. The Complainant commenced her employment with the Respondent on 23 March 2020. The Complainant resigned from her employment with effect from 30 May 2022.  

On 13 June 2022, the Complainant contacted her Store Manager via WhatsApp advising him that she would be coming to the store the following day to speak to him or the HR manager. He advised her that the HR Manager was on leave until Monday 20 June 2022 and advised that he was only available between 10am and 11am on 14 June 2022. The Complainant said that she had not received her holiday pay.  She requested an explanation and payment of the outstanding monies.

On 17 June 2022, the Complainant contacted the Store Manager again via WhatsApp to advise him that she would be submitting a complaint to the WRC.

On 23 June 2022, the Respondent wrote to the Complainant as follows:

‘’Your entitlement for the full year for 2022 is 22 days annual leave for the full year/52 weeks. As you worked with the Company for 21 weeks of this year, your holiday entitlement for this period is 9 days annual leave.   You already took 5 days annual leave in February 2022 and therefore were left with 4 days annual leave remaining. As per your final payslip, you received the 4 days annual leave in your final pay.’’

Respondent’s Position

As provided in the Complainant’s contract of employment, ‘’payment of annual leave is calculated with the provisions of the Organisation of Working Time Act, 1997’’ and ‘’ if you start or leave your employment during a holiday year, your leave entitled for that year will be calculated on a pro-rata basis’’. The Respondent submits that it complied with its legislative and contractual obligations at all times.  Furthermore, the Respondent’s Annual Leave Policy outlines the calculation of annual leave as follows: ‘’Annual Leave pay is calculated on the average normal weekly pay over the 13 weeks period prior to the date that the leave is said to take place. As the majority of MOPI colleagues are employed on a Pro-Rata basis the working week is defined as the number of days a colleague works in a week.‘’

The Respondent submitted that there were a number of unauthorised absences and periods of uncertified sick leave which reduced the amount of holiday pay due to the Complainant. Prior to the Complainant’s departure, she was recorded as an unauthorised absence for a full week and the week before that, she only worked half a day.  The Respondent submits that the Complainant received her pro-rata annual leave, calculated in accordance with its Annual Leave Policy, on cessation of her employment with the Respondent.

Section 19(1)(c) of the Organisation of Working Time Act 1997 provides that pay in respect of annual leave should be calculated in the following manner:

“19. Entitlement to annual leave

(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):”

The Complainant asserted that she was entitled to annual leave accrued during week 22 of her employment when she was rostered to work 18 hours.  There was no dispute that the Complainant did not work those hours.

Section 19 of the Organisation of Working Time Act, cited above, requires that an employee must work in order to accrue an entitlement to annual leave.  As the Complainant did not work during week 22, I find that she did not accrue an entitlement to annual leave during that week.  I find, therefore, that this complaint is not well founded.

I declare that this complaint is not well founded.

Outstanding holiday pay