ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00043951
Parties:
| Complainant | Respondent |
Parties | Sean McCann | Florica Tudor Cafe Express Kiosk 12 |
Representatives |
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Complaint:
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-00054327-001 | 01/01/2023 |
Date of Adjudication Hearing: 14/07/2023
Workplace Relations Commission Adjudication Officer: Louise Boyle
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The hearing was heard remotely pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. 359/2020, which designated the Workplace Relations Commission as a body empowered to hold remote hearings.
Parties were advised that following the delivery of a judgement of the Supreme Court in Zalewski v Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 that the hearing would be held in public, and that this decision would not be anonymised and there was no objection to same. Parties were also advised that an Adjudication Officer may take evidence under oath or affirmation and reminded that cross examination is permitted. Any submissions received were exchanged. The complainant gave evidence under oath. The respondent did not attend.
Background:
The complainant submits that he was not paid his annual leave. The respondent did not attend.
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Summary of Complainant’s Case:
The complainant submits that he did not receive annual leave during the duration of his employment. He commenced employment on 03/03/2022 and left his employment on 08/07/2022 and the complaint was received by the WRC on 01/01/2023.
In evidence the complainant said that he never received a contract of employment and had a good relationship with his employer. He said that he worked mostly 40 hours per week but less in March 2022 and April 2022. It was submitted that based on the legislation he had worked 600 hours and was owed 8% at the rate of €10.50. The complainant submitted that he waited to submit his complaint as the respondent told him that it would be paid to him within six months but it never arrived. |
Summary of Respondent’s Case:
The respondent did not attend. The respondent advised the WRC by telephone that they were not the correct named respondent and would not attend. The respondent was put on notice of the hearing dated 25/05/23. |
Findings and Conclusions:
The complainant submitted that he never received his annual leave entitlements. I note that the respondent did not attend and I am satisfied that the respondent was on proper notice of the hearing and failed to attend.
The respondent advised the WRC that it was not the correctly named respondent. I have reviewed the complainant’s payslips and note the evidence of the complainant and am satisfied based on the evidence and submissions that the respondent is the correctly named respondent.
Pursuant to Section 41(6) of the Workplace Relations Act 2015, I have jurisdiction to investigate any complaint under the Organisation of Working Time Act 1997 for a period of six months from the date of the referral of complaint and that this complaint was received by the WRC on 01/01/2023.
I note that Section 2(1) of the Act stipulates that “leave year” means a year beginning on “any 1st day of April”, therefore, I may adjudicate on the period from 01/04/2022 to 08/07/2022 which was the complainant’s termination date. Any complaint in respect of the leave year 1 April 2021 to 31 March 2022 has been presented outside the time limits for referral of a complaint. I find that the Complainant worked 520 hours in total in the cognisable period at a rate of €10.50.
Section 19 provides that “.—(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):”
Taking into consideration all the submissions and evidence I find that the complaint is upheld and is well-founded and the Respondent is directed to pay the Complainant compensation of €455 which I deem to be just and equitable having regard to all the circumstances of this claim.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Taking into consideration all the submissions and evidence I find that the complaint is upheld and is well-founded and the Respondent is directed to pay the Complainant compensation of €455 which I deem to be just and equitable having regard to all the circumstances of this claim.
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Dated: 25-07-2023
Workplace Relations Commission Adjudication Officer: Louise Boyle
Key Words:
Annual leave, respondent did not attend |