ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00025393
Parties:
| Complainant | Respondent |
Parties | Ryan Laird | Orbit Security Limited |
| Complainant | Respondent |
Anonymised Parties |
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Representatives | Donna Ponsonby Gallagher Brennan Solicitors Simon Gillespie Barrister | The respondent did not attend and was not represented at the hearing |
Complaint(s):
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-00032229-001 | 15/11/2019 |
Date of Adjudication Hearing: 07/02/2023
Workplace Relations Commission Adjudication Officer: Emer O'Shea
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 27 of the Organisation of Working Time Act 1997 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
The claimant was employed as Security Staff with the respondent from the 26th.April 2018 to the 19th.Augus 2019.He submitted the respondent was in breach of the Act for failing to pay him for annual leave in respect of the period from the 1st.January 2019 – the 19th.August 2019.
The respondent did not attend and was not represented at the hearing
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Summary of Complainant’s Case:
The claimant’s representative submitted that the respondent was in breach of the Act for failing to pay the claimant for holidays owed from the 1st.Jan2019 – 19th.August 2019.It was submitted that the claimant was disadvantaged by virtue of the lack of information in relation to hours worked n 2019 – he based his estimates on rosters in the possession of the claimant. However , the claimant did not have his contract of employment in his possession. The claimant was employed as a Security Operative – primarily assigned to mobile control.His net pay usually amounted to €1,053.21 per fortnight .The claimant did not avail of any leave from the 1st.January 2019 to the date of termination on the 19th.August 2019.It was submitted that at all material times the respondent represented to the claimant that he would be paid at all material times. The representative further submitted as follows : The Complainant is placed at a severe disadvantage in that he is unaware of the exact number of hours he worked in the relevant year. The Complainant will rely on a number of Rotas which were submitted into evidence From the Complainant’s calculation, the Complainant is aware that he worked the following hours: - the figures are estimated on the rosters the complainant had in his possession as well as his attendance patterns in the previous year 2018 - Week 1 – 22hrs Week 2 – 56hrs Week3 -20 hrs Week4- 0 hrs Week5- 0hrs Week6-0 hrs Week 7 -39hrs Week 8-72hrs Week 9 -69hrs Week10-69hrs Week11-57hrs Week12-69hrs Week13-69hrs Week14-48hrs Week15-57hrs Week16-69hrs Week17-72hrs Week18-60hrs Week19-60hrs Week20-42hrs Week21-39hrs Week22-63hrs Week23-51hrs Week24-51hrs Week25-31hrs Week26-49hrs Week27-51hrs Week28-77hrs Week29-32hrs Week30-0hrs Week31-0hrs Week32-0hrs Week33-39hrs
Pursuant to Section 19 of the 1997, as amended: 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. Pursuant to Section 23(1)(a) of the 1997 Act, as amended: 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. It is submitted on behalf of the Complainant that the Respondent its servants or agents failed, refused or neglected to pay the Complainant any holiday pay that had accrued to the Complainant since January 2019 until the date of cessation of the Complainant’s employment, despite representations to the contrary given by the Respondent its servants or agents to the Complainant, and despite numerous demands by the Complainant in respect of same. It is submitted on behalf of the Complainant that he is entitled, pursuant to Section 19 of the 1997 Act, to have his annual leave / holiday pay calculated by the method set out in Section 19 which affords the Complainant the greatest entitlement. The Complainant herein seeks adjudication in relation to the within dispute in order that the exact hours worked, exact fortnightly pay and the accrued entitlement may be established through engagement with the Respondent at the hearing of the action.
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Summary of Respondent’s Case:
The respondent did not attend and was not represented at the hearing. |
Findings and Conclusions:
On the basis of the uncontested evidence of the claimant I find on the balance of probabilities that the complaint is well founded.The date of contravention is the date of termination of employment – the 19th.August 2019.The number of hours estimated to have worked =1,443.Accordingly I find that the complainant was entitled to 4 weeks annual leave |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 27 of the Organisation of Working Time Act 1997 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
I require the respondent to pay the claimant €2,106.42 for unpaid holidays .I further require the respondent to pay the claimant €500 compensation for breaching the Act by failing to pay him outstanding annual leave on termination of his employment |
Dated: 21st February 2023
Workplace Relations Commission Adjudication Officer: Emer O'Shea
Key Words:
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