Complainant

Respondent

Parties

Vera  Toal

Independent College Ltd

Complainant

Respondent

Anonymised Parties

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Representatives

Rachel Hartery SIPTU          

John O’Sullivan, SIPTU

MP McGuinness (BL)

Jamie Doddy (Hayes Solicitors)

Tommy Whittle (Hayes Solicitors)

Andrew Deegan (Independent College)

Mark Byrne (Independent College)

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-00051009-001

03/06/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00051009-002

WITHDRAWN

03/06/2022

The Complainant, Vera Toal confirmed she commenced employment with the Respondent, Independent College Ltd in 2017.  She confirmed the respondent did not pay her annual leave.  Ms Toal confirmed instead of paying her annual leave they took 8% from her gross pay and returned the 8% when not lecturing.  The Complainant confirmed she funds her own annual leave. She has queried this and objected to no avail.  Ms Toal stated this is in breach of legislation and she is seeking all outstanding leave and compensation.

The Complainant representative, Ms Hartery (SIPTU) stated the Complainant, Ms Vera Toal has not been paid her full entitlement for annual leave since the commencement of her Employment.

The Complainant representative stated the Respondents, Independent College Ltd are in breach of the Organisation of Working Time Act 1997 as Ms Toal had not been provided with paid leave contrary to Section 19 of the Act.

The Complainant commenced employment in September 2017 with the Respondent, Independent Colleges Ltd as a lecturer in Business Management.  She was contracted to work 15-hour week and her hours varied.  They stated the Complainant is renumerated at €70 per hour and 8% was deducted and set aside for payment of annual leave. 

The representative stated two contracts of Employment were issued, one in 2018 and one in 2019 along with a non-disclosure that Ms Toal disputed, therefore contracts were not agreed, and these documents went unsigned. 

Ms Hartery (SIPTU) complainant representative stated they consider the Respondents, Independent College Ltd are in breach of the legislation and have highlighted this to them to no avail.

The representative argued that part 3, section 19 1 (c), 19 2 (b) and 19 (3) of the Organisation of Working Time Act, 1997 have been breached.

Ms Hartery stated the claimant was informed at interview her hourly rate was going to be at least €70 per hour.

Ms Hartery evidenced how the claimant entered her fee note each month at the rate of €70 per hour yet was renumerated at 8% less.

Ms Hartery stated how the claimant queried this rate and Independent College Ltd confirmed that 8% was withheld and paid back each January and July when on leave therefore the claimant was in fact paid annual leave but funded this herself.

The Complainant representative stated that they understood that the Respondents relied on a defence of €64.81 being the correct rate of pay and will attempt to rely on a disputed contract that went unsigned.

They stated that it is noteworthy that it is not coincidental that it is in fact, 8% less than the correct rate of pay.  They stated it is quite deliberate and is by definition rolled up pay.

The Complainant representative stated how they highlighted this to the Respondents, Independent College Ltd as far back as early 2021 with the Claimant’s Colleague took a successful case and her case is the same.

The Complainants representative stated the Respondents also communicated with its employees on foot of that case stating there was “confusion” and “errors” and paid sums of monies to employees in lieu of same.  They evidenced that payment was received after the referral of this case to the sum of €737 on the 31 July 2022, labelled as annual leave.   

The Complainant representative stated that after this payment was made, the Respondents Representatives wrote to the claimant and requested the monies be returned, proffering “errors” and “unintended confusion”. 

They stated, that said, and very importantly, this does not negate the fact that this Employer still breached the Act despite being made aware that their practice of withholding 8% was incorrect.

They stated it is also noteworthy that up to April 2021 this Respondent, Independent College Ltd did not pay public holidays either, but when highlighted, has since been rectified.

The Complainant representative stated that on 22 August 2017, the claimant was interviewed by the then Head of School (now Registrar) Prof. Andrew Deegan and then Head of Quality and Exams Mr Fanahan Barry.

The Complainant representative stated at the interview Ms Toal was told her hourly pay was at least €70. They stated like all employees Ms Toal was responsible for submitting her own hours via an internal IT system much like any other spreadsheet.  They stated Ms Toal’s fee note was inputted at €70 per hour as this was the rate for lecturing on a degree course, €80 per hour for Masters.

The Complainant representative stated when Ms Toal received her first payslip the rate was 8% less (€64.81). They stated Ms Toal queried this via email to Accounts Administrator in ICD, as follows;

“Can you please advise me what the exact hourly rate is for a part-time lecturer at ICD? In my interview with Andrew Deegan, he indicated that it was at least 70 euros but didn't mention the exact figure.”

The representative stated Mr Reilly responded;

“As for your salary, I cannot confirm what rate was as Andrew hasn't passed this on to me, but please note that 8% of your hourly rate is taken off and saved as holiday pay and then paid in a lump sum every July and January each year.

I'll be sure to follow up with Andrew about what rate which, if 70 euros was agreed would be €64.81 per hour.”

The Complainant representative stated that Ms Toal approached the Accounts Administrator in person and also enquired about the rate of pay and his answer was as described above.

Ms Hartery, the representative stated that clearly this is breaching the Organisation of Working Time Act and it is noteworthy and it appears that this practice continued for several years.  They stated that in fact, this method of rolled up pay was the same for Ms Roche Morrisey and three years earlier, in 2020 when she queried same, the Accounts Administrator gave the same response in 2020 as follows;

If you mean the gross doesn't match your fee note, this is because 8% of your hourly rate is withheld each month, it accumulates and paid back to you in July and January each calendar year as annual leave pay while there are no classes on. Holiday pay accumulated from January to June is paid out in July and the holiday pay accumulated from July to December is paid out in January. This is the same for all lecturers at Independent College Ltd. Your normal hourly rate is €80 and 8% of this is withheld so your monthly hourly rate works out as 74.07.

I am surprised this wasn't mentioned to you when you first started with us! We actually paid out some annual leave pay to you in January already.

The representative stated in addition, the T & C document section 6.13 point 6 states that;

You may not normally take more than two working weeks consecutively, although special requests will be considered.

Ms Hartery, representative stated this was also breaching section 9 (3) of the Act, this was also highlighted at the last WRC and they stated it was their understanding nothing has changed with regard to this. 

Ms Hartery, Complainant representative contended that this in effect means employees were funding their own leave.  They stated that “rolled up pay” was deemed unlawful in 2006 following a European ruling. 

The representative stated that the method of “rolled up pay” has been outrightly rejected by the Respondents and they have refuted that this was the method of payment even though it clearly is and fits with the definition. 

The representative stated when the claimant commenced working, it appeared the College wasn’t run very effectively.  They stated there appeared to be haphazard ways of working and with regard to payment of wages. They stated as mentioned above, no public holidays were paid up to April 2021, and in this case the application of section 21 (3) has also been breached. 

The representative stated subsequent to employee’s intervention they have been paid public holidays since.  However, they stated, the case within the legislation has not been complied with correctly and the claimant did not receive compensation for any bank holiday she worked.

The Complainant representative stated another example of non-payment if employees attended meetings regarding QQI or external examinators no payment was received.  They stated that while these are not claims before the WRC today, it is important to highlight the difficulties employees were experiencing.

The Complainant representative stated in mid-August 2020 just two weeks before college restart, lecturers had not received timetables or allocated modules.  They stated that for the reasons above the claimant emailed Mr Mark Byrne saying she had made other arrangements for the term.  They stated that Mr Byrne responded stating Ms Toal could come back at any time.

The Complainant representative stated on 18 July 2021, Ms Toal met Mr Byrne and they had a discussion about returning.  They stated that Mr Byrne confirmed the classes were hybrid and Ms Toal reverted in early August and returned to Lecturing.  They stated Mr Byrne relayed via WhatsApp that he was delighted to have her back.

The Complainant representative stated Ms Toal queried her pay via email, querying was it the same rate of €70 per hour and Mr Byrne responded "still the same”. 

The Complainant representative stated on page 18 section 6.13 of the Employee handbook, sets out the policy and the conditions of applying for annual leave.

The representative stated the “entitlement” in this document refers the reader back to their own terms and conditions.  Section 6 of the T & C refers the reader to schedule 1.

Annual leave entitlement will be 8% pro rata based on the number of hours worked in the leave year, subject to a maximum of four working weeks. Holiday pay will be based on your current rate of renumeration.

And,

The representative referred to Point 7 which states; holidays are paid at normal basic pay.

The representative stated, however, the Respondents did not follow these policies, as stated the Claimant pays for her own leave. 

They representative referred to the Organisation of Working Time Act Part 3 – Section 19 (1)

19.— (1) Subject to the First Schedule, an employee shall be entitled to paid 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 representative referred to the Organisation of Working Time Act Part 3 – Section 19 (2)

Section 2 sets out pay in respect of an employee’s annual as follows.

(a) be paid to the employee in advance of his or her taking the leave,

(b) be at the normal weekly rate or, as the case may be, at a rate which is proportionate to the normal weekly rate

The representative referred to the Organisation of Working Time Act Part 3 – Section 19 (3)

The annual leave of an employee who works 8 or more months in a leave year shall, subject to the provisions of any employment regulation order, registered employment agreement, collective agreement or any agreement between the employee and his or her employer, include an unbroken period of 2 weeks.

The representative referred to the Respondents T & C 6.13 point 6 states that;

You may not normally take more than two working weeks consecutively, although special requests will be considered.

The complainant representative said that they consider the Respondents in breach of section 19 (3) also. 

They also referred to the following Case Law

i.              Ms Sharon Roche Morrissey v ICD Case ADJ-34131 – complaint well founded

The Complainant representative stated this case has been cited in detail above and they rely on this case.  They stated that the circumstances are the same as this case and the OWTA has been breached. 

ii.                   O’Donnell v Wolf Security WTC/00159 [2001] 12 E.L.R. 136 - Employer failed to provide paid annual leave.

The representative stated that the employer in this case, paid the Claimant 50p per hour extra in lieu of payment for annual leave.  They stated the Labour Court in this case considered whether parties can contract out of statutory obligation to provide paid leave. 

They stated that it was held - Provisions of a statute may not be contracted out of when result would be to defeat the purpose of the Act. The Labour Court justified its decision by citing the “National legislation implementing a Directive must be interpreted to achieve the result envisaged by the Directive—Organisation of Working Time Act 1997 (No. 20), Part III, section 37—European Council Directive 93/104.  The case was upheld and compensation in this case was awarded.

i.                     In Kvaerner Cementation (Ireland) Limited v Martin Treacy DWT017.  This case highlights Article 7 of the EU directive and emphasises that the primary obligation on an employer is to ensure that employees receive the requisite period of paid leave.

They stated the Labour Court held as follows:

“Article 7 of the Directive provides as follows:

(1) Member States shall take the measures necessary to ensure that every worker is entitled to paid leave of at least four weeks in accordance with the conditions of entitlement to, and the granting of, such leave laid down by national legislation and/or practice.

(2) The minimum period of annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated.  Part III of the 1997 Act was enacted to give effect to Article 7(1) of the Directive. It provides employees with an entitlement to four weeks paid annual leave per year and to paid leave, or additional payments, in respect of public holidays. This Part also makes consequential provisions in relation to the calculation and time of payment for such leave.

They stated that Court went on to say: “What emerges from these statutory provisions is that:

1. The primary obligation on an employer is to ensure that employees receive the requisite period of paid leave.

2. That obligation cannot be offset by payment of an allowance in lieu of such leave.

3. The obligation is imposed for the protection of the health and safety of workers.”

The representative stated the Court decided that “the inclusion of an element in basic pay designed to cover holiday pay is inconsistent with the result which Article 7 of the Directive and Part III of the Act is intended to achieve.”

ii.                   Stablefield Limited v Ana Larcramioara Manciu – DWT1924 – Compensation for conscious breach of the Act (2019)

The representative stated in this case the representative said that the Court determined that the case was upheld and the Court stated that the payment of compensation to the complainant for what the Court is satisfied was a conscious breach of the Act is the most appropriate meal means of dealing with this matter. They stated that the Act, requires the court to have regard to what level of compensation is just and equitable, subject to a limit of two years pay.

The representative stated the ECJ, set out in Von Colson that sanctions for breaches must ensure that they are effective, proportionate and dissuasive, they must reflect the gravity of the breaches and should act as disincentives against future infractions.

The representative stated taking all factors into account the Labour Court awarded compensation of €20,000 for breaches of the complainant’s rights under section 15 of the Act.

They stated that 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.

Rachel Hartery (SIPTU) the Complainant representative stated they have provided evidence that the claimant Ms Toal was told at interview her rate of pay was €70 per hour.

The representative stated they have also provided evidence that the fee note entered each week was €70 per hour.

The representative stated they have also provided evidence that the Respondents, Independent College Ltd deducted 8% from the Claimant and paid this back in January and July each year, which is consistent with her payslips.

The representative stated it has also been evidenced that the Respondents verbally and in written terms expressly stated Independent College Ltd withheld the 8% and therein lies the breach. 

Ms Hartery, the Complainant representative stated they have also evidenced how the Respondents responded to non-payment of annual leave subsequent to Ms Roche Morrissey’s case and attempted to pay some employees and not others.

The Complainant representative stated they contend the Respondents breached the Act for many years and despite the WRC making a decision on the matter on this serious breach they have consciously continued with this practice. 

The representative stated they respectfully request that the Adjudicator find their case is well founded, require ICD to fully comply with the Act, award the maximum compensation allowable under this Act.  They request this to act as a deterrent to Independent College Ltd as referenced in Van Colson.

Ms Hartery stated Ms Toal’s salary was €15,623.05 on average based on her time with the college.  They are therefore looking for 2 years salary to be applied if successful in this case.

The Complainant, Vera Toal gave evidence and confirmed that her hourly rate would be “at least €70” per hour.  Ms Toal stated she got two contracts which she did not sign as they seemed to be for full time admin staff not for part time lecturers.  She submitted her fee notes and in this she stated her rate per hour was €70. She emailed the college and Damian Reilly emailed back and confirmed 8% of her hourly rate was taken off for holidays and paid in July and January.  She trusted this was the correct way to be paid.

Ms Toal stated in July 2022 she received a letter from the college saying her holidays were calculated correctly based on her hourly rate being €64.81 which she contests not to be the case.  She stated they in error paid her €737 they said as they thought her holidays initially were not calculated correctly, but then said this was an error and it was not due to her and asked for it back. She stated she feels they only asked for it back due to her WRC referral on 3 June.  Ms Toal stated she has not paid this money back as she feels its owed to her.  She stated in August 2020 with 2 ½ weeks before they were due to start back it was Covid and she made other arrangements for work as she is part-time and had not work committed at that stage for the college.  Ms Toal feels this is about broken trust for her. She only learned in 2021 that the holidays were being calculated wrong. 

The Complainant representative stated in closing that their reference to €70 is clarified to Damien Reilly’s email.

The Complainant confirmed she resigned in August 2020 and returned to work for the College in September 2021.

 They stated based on the previous WRC claim this case is equally valid and they want compensation under the Organisation of Working Time Act for breach of this act.

The Respondent representative, MP McGuinness stated the Complainant, Ms Vera Toal alleges:

She did not receive paid annual leave in breach of the Organisation of Working Time Act 1997.  The complaint form states that “Since in commenced employment in 2017 (SIC), my employer does not pay annual leave. Instead, they take 8% from my gross pay and return this 8% when not lecturing. I fund my own annual leave. I have queried this and objected but to no avail. This is in breach of legislation and I am seeking all outstanding leave and compensation.”

The representative stated Ms Toal did not receive public holiday entitlement during the course of her employment in breach of the Organisation of Working Time Act 1997.

The Respondent representative MP McGuinness stated that on the basis of s. 41(6) of the Workplace Relations Act 2015, it is submitted that the relevant period over which jurisdiction can arise for these claims is 4 December 2021 - 3 June 2022. He stated, notwithstanding that the alleged breaches are denied, the majority of the Complainant’s complaint is therefore, statute barred, save any claim for the alleged incorrect payment of annual leave payment for the Complainant during this period and alleged breach of public holiday entitlements.

The Respondent representative stated the Complainant commenced her employment with the Respondent, Independent College Ltd as a part time, fixed-term lecturer on 1 September 2017. She taught a number of subjects on business degrees within the Respondent including business organisation and contemporary management issues.  He stated the correct legal title of the Respondent is Independent Colleges Limited. He confirmed the Complainant’s hourly rate of pay is €64.81.

The representative stated without prejudice to the position of the Respondent that the majority of the periods over which the alleged incorrect calculation of annual leave and alleged unpaid public holidays are statute barred, the Respondent herein sets out a general history of the Complainant’s employment. He stated for the avoidance of doubt: the Complainant was not employed by the Respondent from August 2020 - September 2021, as she resigned from her employment and returned to lecturing in September 2021 - January 2022.

The Respondent representative MP McGuinness stated as a part time lecturer, the Complainant, Ms Toal lectured for two semesters each academic year being 12 weeks in duration. He stated the Autumn term commences in September each year and the Spring term commences in February each year.  He stated that exams are held at the end of the Autumn term in December and in the Spring term in May/June for a period of two weeks and thereafter corrected by lecturers, during the first two weeks of January/ June of each year, following which examination board meetings take place.  He stated the Complainant, Ms Toal did not lecture, during the first two weeks of February/July (approximate dates depending on the calendar year) and received holiday pay calculated on the basis of the calculation of 8% of her lecturing hours worked during the Autumn Semester in January of each year and 8% of her lecturing hours worked during the Spring Semester in July of each year.

The Respondent representative confirmed the Complainant, Ms Toal was a lecturer in the business department of the Respondent for the academic years (two semesters 2017, 2018, 2019, 2020 and the autumn semester of 2021/2). He stated Ms Toal was provided with two fixed-term, part time contracts by the Respondent:

12 February 2018 - 25 May 2018 (for 2.5 hours lecturing per week for that Spring semester);

9 September 2019 - 7 February 2020 (for 5 hours lecturing for that Autumn semester)

The representative stated the fixed-term contracts of employment of the Complainant provide as follows at Schedule 1:

Basic rate of Pay: €64.81 per lecturing hour.

The representative stated the Annual leave entitlements will (sic) 8% of the hours worked in the leave year, subject to a maximum of 4 working weeks. Holiday pay will be based on your current rate of remuneration …”

The Respondent representative stated the Complainant furnished a spreadsheet entitled “Payroll Submission Form” each month for payment for her hours of lecturing taught. He stated the information on these documents was populated by the Complainant and included her hours of work and rate of pay. He stated these spreadsheets record the hours of lecturing of the Complainant and the rate for examination corrections. He stated it should be noted that the hourly lecturing rate inserted by the Complainant of €70 per hour was not paid to her and rather her contractual hourly lecturing rate of €64.81 was discharged to her as is reflected in payslips.

MP McGuiness, Respondent’s representative stated during the breaks in semesters (usually February and August) contact was made by Mark Byrne, Dean and Head of Business/IT, to the Complainant informally to ascertain whether she wished to continue to lecture, and the subjects which were available.

The Respondent representative stated on 17 August 2020, the Complainant, Ms Toal contacted Mark Byrne and informed him that she was resigning. She stated that she would not be “available to Independent College. Please count me out of your planning from now on”.  He stated Ms Toal did not return to the Respondent as a lecturer until September 2021.

The Respondent representative stated during the summer of 2021, following an informal conversation, with Mark Byrne and the Complainant, Ms Toal confirmed that she would like to return to lecture for the Autumn term of 2021. He stated Ms Toal duly did so, and received holiday pay in January 2022 for February 2022.  

The Respondent representative stated it is accepted that no written fixed-term contracts, save those provided of these submissions were provided to the Complainant.

The Respondent representative stated it is not the case that the Respondent does not pay annual leave to the Complainant, as alleged, or that she funds same. He stated it is denied that 8% of her rate of pay for lecturing is taken from her pay and then returned as holiday pay at the end the of the semester. He stated rather, the Respondent paid annual leave calculated at the rate of 8% of her lecturing hours each January/July each year in advance of her taking annual leave in February/July of each year. He stated Ms Toal’s hourly salary, as per the two written contracts of employment is €64.81 per hour and not the gross hourly rate of €70 as claimed on her complaint form. He stated that any reference to €70 per hour which the Complainant alleges as being deferred pay for annual leave, is not accepted, and rather it was so characterised for budgetary purposes within the Respondent (calculating likely holiday pay to be discharged) but was not the hourly rate of pay of the Complainant.

The representative stated it is also the case that the Complainants hours of lecturing from 2021 were a maximum of 5 hours per week (teaching two subjects)-including for the period of September 2021-January 2022 and her annual leave, which was taken, was calculated at 8% of her lecturing hours rate.

The Respondent representative referred to the decision of the WRC in Morrissey v Independent College ADJ-0003431 wherein it was found that the Respondent had breached s. 19(3) of the Organisation of Working Time Act 1997 in its calculation of the correct rate of pay of a lecturer of annual leave (in that case the hourly rate of pay of SM being found to be €80, differing from her contractual rate of pay of €74.04 per hour), the Respondent conducted an internal review of its annual leave payments to lecturers, including the Complainant.  Following this review, the Complainant was paid the sum of €737 on 20 July 2022.

The Respondent representative stated this was discharged in error, as in fact the Complainant had no such monies owing to her for the period of August 2021-January 2022 (the relevant time period) as her annual leave payment had been correctly calculated in line with her payslips for this period and her contractual rate of pay (as per her written contracts of employment) was €64.81.  He stated that by letter dated 28 July 2022, the Respondent notified the Complainant that it would recover these monies. He stated it has not done so to date. He stated without prejudice to the above, if the Adjudication Officer finds that the correct hourly rate was €70 per hour (which is denied), it is submitted that the Complainant has been paid for outstanding annual leave payment.

The Respondent representative referred to Annual leave under Section 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.

[(1A) For the purposes of this section, a day that an employee was absent from work due to illness shall, if the employee provided to his or her employer a certificate of a registered medical practitioner in respect of that illness, be deemed to be a day on which the employee was—

(a) at his or her place of work or at his or her employer's disposal, and

(b) carrying on or performing the activities or duties of his or her work.]

(2) A day which would be regarded as a day of annual leave shall, if the employee concerned is ill on that day and furnishes to his or her employer a certificate of a registered medical practitioner in respect of his or her illness, not be regarded, for the purposes of this Act, as a day of annual leave.

(3) The annual leave of an employee who works 8 or more months in a leave year shall, subject to the provisions of any employment regulation order, registered employment agreement, collective agreement or any agreement between the employee and his or her employer, include an unbroken period of 2 weeks.

(4) Notwithstanding subsection (2) or any other provision of this Act but without prejudice to the employee's entitlements under subsection (1), the reference in subsection (3) to an unbroken period of 2 weeks includes a reference to such a period that includes one or more public holidays or days on which the employee concerned is ill.

(5) An employee shall, for the purposes of subsection (1), be regarded as having worked on a day of annual leave the hours he or she would have worked on that day had it not been a day of annual leave.

(6) References in this section to a working week shall be construed as references to the number of days that the employee concerned usually works in a week.

The representative stated the calculation of annual leave paid to the Complainant in advance of taking annual leave in February 2022 is calculated on the basis of the rate of pay of 8% of the hourly rate of €64.81. He stated that this correlates with s. 19(3) of the OWTA which requires payment for annual leave to be paid on the basis of 8% of the hours worked in the leave year.

The representative stated insofar as the Complainant seeks to recover for any alleged underpayments for annual leave outside of the cognisable/temporal limit of 6 months from the date of any contravention, this cannot arise as it is statute barred.  He stated in this regard, reliance is placed on the decision of the Labour Court decision of Coughlan v Carlow County Council, DWT 2228. The complaint related to an underpayment of annual leave for 21.5 years.  In making its Determination, the Labour Court held that “the Complainant’s claim for retrospective payment of alleged underpayment of annual leave back to the date of commencement of employment fails. The Court’s judgment is that its jurisdiction is limited temporally to the cognisable period referred to earlier and is confined also to considering the calculation of payment for statutory annual leave only.”

He stated the Labour Court considered that

“As stated previously, the Complainant referred his complaint under the Act to the Workplace Relations Commission on 8 March 2021. As his claim relates to the calculation of payment for annual leave (as opposed to the granting of annual leave), in the Court’s judgment, the cognisable period covered by the claim – having regard to section 41(6) of the Workplace Relations Act 2015 - is the period 9 September 2020 to 8 March 2021.

The representative stated in addition, it is also the case that any breaches of the OWTA relating to the calculation of annual leave (which are denied) for any earlier periods prior to the cognisable time period of December 2021-3 June 2022, crystallised in August 2020 when the Complainant ceased her employment with the Respondent by way of resignation.

The representative stated the Complainant alleges that the Respondent is in breach of Section 19(3) and quotes from the Respondent’s Employee Handbook which provides inter alia that “You may not normally take more than two weeks consecutively, although special requests will be considered”. He stated it is submitted that this is in line with Section 19(3) which provides for an unbroken period of two weeks. He stated that it is also noteworthy in this respect that the Complainant was not a full-time employee but worked on a part time basis.

The representative stated the Complainant appears to criticise the Respondent for communicating to their staff on foot of the Morrissey case. He stated it is submitted that the Respondent has attempted to resolve matters correctly with their staff and the suggestion that this was an attempt to avoid further claims to the WRC is strongly denied. He stated it is submitted that the Complainant would no doubt criticise the Respondent if they had not engaged with their staff following the Morrissey decision. The representative stated the Complainant is fully aware of the detailed attempts that have been made to resolve matters and to ensure that the errors previously made have been identified and rectified.

Mr Andrew Deegan (Independent College Ltd) gave evidence under oath to confirm he was the Registrar.  He confirmed his function was totally academic and he was not involved in finances due to good governance.  He stated he cannot recall saying the Complainant would be paid over €70 as her hourly rate.  He stated he was not involved in contracts and negotiating pay and it wasn’t typical of his interviews.

Mr Deegan confirmed they knew each other before Ms Toal commenced her employment from being in his class previously.  He said the Complainant is a lady of good character and integrity so he accepts what she says.

Mr Mark Byrne, Dean and Head of Business/IT gave evidence under oath and confirmed he worked as a part-time lecturer for €64.81 initially.  The rate changed in August 2022 to €70/€80 depending on the programme.

Mr Byrne confirmed in August 2020 the email he received from Ms Toal was confirming her resignation.  He stated Ms Toal had not worked in the college until he asked her to return when they met by chance. He stated Ms Toal returned after that in September 2021.  Mr Byrne said he believed the rate to be €64.81 for her role at that time.

Mr Byrne also stated what the Complainant calls a fee note he saw as a timesheet.

Under cross examination Mr Byrne confirmed he was responsible for contracts by Head of School but he didn’t issue them; a HR company issues them.

Mr Byrne stated in relation to the pay he wasn’t involved in same for Ms Toal.

Mr Byrne stated he does not remember any issue raised about the contracts with him.   He stated when he conducted interviews, he indicates the rate of pay.

Mr Byrne stated the rate in the contract was €64.81.

Mr Byrne said why did Vera Toal put in the €70 rate and he said they work in other locations and as a result they can put in any rate.  He stated he doesn’t accept anyone told Mr Toal the rate but that staff in the staff room can discuss them.

Mr Byrne stated in relation to rolled up annual leave calculation he only learned about this at the previous WRC claim and doesn’t profess to be an expert or have knowledge in this area.

The Respondent stated that the contractual documentation and the payslips support that the hourly rate was €64.81 and said that the Respondent engaged with all of its staff in order to identify and rectify the errors that were made. The Respondent should not be criticised or penalised for their actions in this regard, he therefore said that if the Adjudication Officer finds that the correct hourly rate was €70 then the Respondent has already paid the outstanding annual leave payment to the Complainant.

Under cross examination the Complainant, Ms Toal said the email of 17 August 2020 was a resignation at August 2020 – September 2021.  Ms Toal stated she came back to work for the college in September 2021.

The Respondent stated that what the Complainant say as fee notes were timesheets and the Complainant under evidence said she didn’t see the difference between fee notes and timesheets.

The Respondent stated that €64.81 plus 8% brings it up to €70.

The Respondent stated that €737 was calculated as due if calculated based on €70 which they say was given to the Complainant in error. 

The Respondent representative stated in the closing that the rate of pay in contract and payslip was €64.81 plus 8% is your annual leave.

However, if the WRC find the rate is €70 the employee Ms Toal got the money due to her.

They confirmed Ms Toal returned in September 2021 and that’s the only relevant years where she earned €3,000 and €6,000 for her only 2 years she worked for the college.  Previous service is not relevant.

The only claim before the WRC is the Organisation of Working Time Act in relation to holidays and holiday entitlement as the public holiday claim was withdrawn at the outset of the hearing. 

It is clear that the hourly rate of pay is in dispute and this is key to this case.  The Respondent state that hourly rate outlined in Ms Toal’s contract of employment was €64.81 and the Respondent stated this was her hourly rate. The Complainant alleges that the rate was €70 and 8% was taken from her wages to facilitate holiday payment.

The Respondent stated they calculated her holiday entitlement to be 8% of €64.81.

Entitlement to annual leave is set out in the legislation in Section 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.

(2) A day which would be regarded as a day of annual leave shall, if the employee concerned is ill on that day and furnishes to his or her employer a certificate of a registered medical practitioner in respect of his or her illness, not be regarded, for the purposes of this Act, as a day of annual leave.

(3) The annual leave of an employee who works 8 or more months in a leave year shall, subject to the provisions of any employment regulation order, registered employment agreement, collective agreement or any agreement between the employee and his or her employer, include an unbroken period of 2 weeks.

(4) Notwithstanding subsection (2) or any other provision of this Act but without prejudice to the employee's entitlements under subsection (1), the reference in subsection (3) to an unbroken period of 2 weeks includes a reference to such a period that includes one or more public holidays or days on which the employee concerned is ill.

(5) An employee shall, for the purposes of subsection (1), be regarded as having worked on a day of annual leave the hours he or she would have worked on that day had it not been a day of annual leave.

(6) References in this section to a working week shall be construed as references to the number of days that the employee concerned usually works in a week.

In this case I find it is not coincidental that 8% of the €70 rate is €64.81.  I find her contracted rate of pay was in fact €70 per hour and her holiday calculation was not done correctly and resulted in an unlawful deduction from her wages to pay for her holidays.  The reference to the 8% is not only confusing it also did not result in the Complainant getting her entitlement to holiday pay in line with the employers’ obligations as set out in the legislation.

I therefore find this claim succeeds as it is well founded.

On the basis of my decision that the claim is well founded accordingly, Section 27 of the Organisation of Working Time Act 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 comply with the provision of the legislation and in considering compensation I have had regard to the rate of pay, length of service of the Complainant and considered what is just and equitable in these circumstances and based on these factors award €8,000.