Complainant

Respondent

Parties

Jessica  Quinn

Rebelshed Ltd  -The Green Bar

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-00047988-001

05/01/2022

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and the respondent owner gave their evidence under affirmation.  Both were given the opportunity to cross examine the other but relied on giving statements rather than cross examination. 

The complainant earned €15 per hour and worked a rostered 40 hours per week.  This was confirmed by both parties.  The complainant was employed from 10 May 2021 until she resigned on 16 November 2021.

The complainant submitted that during her employment she build up an annual leave allowance of 91.6 hours.  She submitted that she had taken 40 hours of annual leave and the remainder was not taken and she was not paid for this ours when she left the respondents employ.

The complainant submitted that her annual leave hours were not reflected in her payslips.

The respondent submitted that the complainant used up her full annual leave entitlement.  The respondent submitted that as well as the 40 hours that the complainant stated that she took as leave, her final salary payment reflected 32 hours in respect of outstanding holiday pay.

The respondent submitted that the complainant took three days leave in early November 2021 and that this was a further three days of annual leave used up.  The respondent submitted that the complainant only worked 23 hours that week and was paid for 17 hours and that this was considered to be annual leave.

The respondent submitted that the complainant took another day off when she got food poisoning and mentioned to him that he could resolve this as he saw fit.  The respondent submitted that this constituted annual leave.

The respondent submitted that he did not maintain proper records regarding holiday and working hours during the timeframe encompassed by the complaint but submitted that this has now been rectified.  Accordingly, although documentation was submitted regarding rosters and payslips, it does not differentiate between worked time, annual leave and sick leave.

Both parties agreed in evidence that the initial 40 hours of annual leave were taken and that a further 32 hours of annual leave were paid for.  Arising from this there remains 19.6 hours of annual leave in dispute.

The respondent stated that the complainant took three days sick pay but did not submit a sick certificate and accordingly these hours were considered to be annual leave.  The complainant dispute this and stated that these days were day off which she worked up the hours for later in the week.  The respondent submitted a handwritten roster which indicated that the complainant worked 23 hours that week but was paid for 40 hours that week.  This was not disputed by the complainant and accordingly it may be considered in all the circumstances that these 17 hours represented annual leave.  This leaves 2.6 hours of annual leave unaccounted for.

Although the respondent suggested that these hours were paid in relation to days when the complainant was out sick and indicated that he had not received sick certs for these days, I note that the complainants contract make provision for taking uncertified sick leave.  Furthermore, the complainant stated that the duty manager had indicated that she should stay at home, this assertion was not challenged.

As the respondent did not keep sufficiently detailed records of the hours worked versus the annual leave taken, there is no documentation supporting the respondents’ arguments.  This issue comes down to the oral evidence given by the parties, and while both parties were reasonably credible, the contract of employment allows for uncertified sick leave to be taken.  Accordingly, I prefer the complainant’s version of events and I find that the complaint is well founded.

In the absence of documentation to the contrary, I am satisfied that the complainant was entitled to some additional hours of annual leave, only around 2.6 hours, and this is reflected in the low level of the award given the provisions of Section 27(3)(c) of the Organisations of Working Time Act, 1997 –

(3)  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.

Having regard to the written and particularly the oral evidence presented in relation to this complaint, my decision is to award the complainant compensation equivalent to a weeks’ pay, i.e., €500, which I consider to be just and equitable having regard to all of the circumstances.

Organisation of Working Time Act – lack of documentation – oral evidence – complainant well founded.