Complainant

Respondent

Parties

Brian  Scully

Top Security

Representatives

Hugh Hegarty Management Support Services (Ireland) Ltd

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-00048846-001

27/02/2022

The Complainant commenced employment with the Respondent in August 2018, his employment with the Respondent ended on 24 February 2022.  He was employed as a Mobile Supervisor and his gross weekly pay was €672 or €13.20 per hour. A complaint under the Organisation of Working Time Act,1997, was received by the WRC on 27 February 2022.  An in-person hearing of the case took place on 6 December 2022. The complaint relates to an alleged under payment of pay for annual leave.

In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th April 2021, the Parties were informed in advance that the Hearing would be in public, and that testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for.

The matter of the calculation of the Complainant’s pay for annual leave was subject of a Decision of an Adjudication Officer (ADJ-00028656 CA-00035218-001) dated 31 July 2021.  This Decision was appealed by the Respondent and the Labour Court heard the appeal in December 2021.  A Labour Court Determination, DWT2215, was issued on 18 February 2022.  The Determination found in the Complainant’s favour.

The Complainant submits that this complaint is identical to another complaint which had been dealt with by the Labour Court.  This complaint and the one dealt with by the Labour Court relate to the non-payment by the Respondent of the correct holiday pay and public holiday pay due.

The Complainant explained that when he worked for the Respondent, he normally worked 4 x 12 hour shifts per week (48 hours). However, his holiday pay of 4 weeks per annum was paid to him as 4 weeks (5 days x 8 hours) totalling 40 hours and therefore leaving a shortfall of 8 hours per each holiday week. This matter was dealt with in Labour Court Determination DWT2214, which found in the Complainant’s favour.  The Court issued its Determination on 18 February 2022.

The Complainant submits that the under payments continued in the period from when he made his complaint up to the day his employment with the Respondent ended., i.e., the situation has continued unchanged with the Complainant not receiving the correct amount due to him for in holiday pay and in public holiday pay.  The Complainant calculates that he is owed €3,527.54 because of these underpayments.

The Respondent submits that it has accepted the position of the Labour Court in this matter and recognises there is a shortfall in the payment for annual leave to the Complainant.

The Respondent submits that this complaint was lodged with the WRC on 27 February 2022 and that consequently the relevant period for the purposes of the Payment of Wages Act is the six months prior to the complaint being made, which would be 27 August 2021.

The Respondent submits that the Complainant was paid for 20 days Annual Leave within the relevant six-month period to the claim and was paid eight hours per day for each of those 20 days; which leaves a shortfall of four hours per day for each of the days of Annual Leave taken.

The Respondent submits that there is a shortfall of €1,056. The Respondent submits that it has attempted to resolve the matter with the Complainant but has not been successful.  The Respondent submits that the Complainant is claiming for a period back to 2020 which has already been dealt with by the Labour Court and secondly any portion of the claim is out of time beyond July 2021.

In conclusion, the Respondent submits that it accepts the Labour Court determination and it is clear the Complainant is owed for 80 hours annual leave, which amounts to €1,056. The Respondent argues that the reference period allowed under the Act means the relevant period is confined to the period 27 August 2021 to 27 February 2022, and therefore no further monies are owed to the Complainant.

The facts of this case are not in dispute. The Labour Court dealt with an identical claim submitted by the Complainant, relating to the period 13 September 2019 to 12 March 2020 (DWT2215) and found in favour of the Complainant; his pay for annual leave had not been calculated correctly.  The Labour Court Determination required the Respondent to pay the Complainant the shortfall due to the him for the period encompassed by the claim which amounted to €158.40.  In addition to paying the outstanding annual leave payment of €158.40 the Court required the Respondent to pay the Complainant a compensation award of €1,250, which it considered to be just and equitable having regard to all the circumstances. 

During the period 12 March 2020 to 24 February 2022, the Complainant puts forward that the same miscalculating of his pay for annual leave took place again. He therefore claims that there has been a shortfall in his pay for annual leave for the period 12 March 2020 to 24 February 2022.

The Respondent accepts this is the case and accepts the logic of the Labour Court’s Determination applies, but argues that as Section 41 (6) of the Workplace Relations Act 2015 imposes a six-month time limit for lodging of complaints under certain employment enactments, including the Organisation of Working Time Act,1997, the relevant period in this instant case is from 27 February 2022 (the date the complaint was presented to the WRC) to 27 August 2021. The Respondent accepts there was an underpayment in this period of €1,056.00 and that this amount is owed to the Complainant.

Section 41 (6) of the Workplace Relations Act, 2015 states as follows:

“(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.”

The Respondent has accepted it miscalculated the Complainant’s pay for annual leave and is happy to repay the shortfall.  In the circumstances I believe this is the correct course of action.

Section 27(3) of the Organisation of Working Time Act, 1997, states as follows:

“(3) 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.

Following in the footsteps of the Labour Court, in addition to paying the outstanding money due to the Complainant (€1,056), I require the Respondent to pay the Complainant a compensation award of €2,500 which I consider to be just and equitable having regard to all the circumstances.  I consider this award is appropriate having regard to the fact that the Complainant did not receive his correct annual leave payments and was required (for a second time) to engage in proceedings to secure his statutory entitlement. For the avoidance of doubt the sum of €2,500 awarded is in addition to the outstanding leave payment of €1,056.

The complaint is well founded. I require the Respondent to pay the Complainant €1,056 to cover the shortfall due to him in his pay for annual leave and an additional €2,500 in compensation.

Pay for annual leave, underpayment,