Complainant

Respondent

Parties

Ian  Costin

Deco-Furbish

Representatives

  Appeared In Person

 Ms Marion Kaulen

Act

Complaint 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-00054808-001

31/01/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00054808-003

31/01/2023

On 31 January 2023, the Complainant submitted three complaints regarding his employment which had ceased one day earlier on 30 January 2023.

The second complaint, CA-00054808-002 was withdrawn at hearing.

The Complainant worked as a Labourer with the Respondent Decorating business for almost 9 months.

The Complainant appeared as a Litigant in person and was accompanied by his Partner in support. The Respondent equally appeared in person and was accompanied by the Company Accountant.

The Respondent filed a written response to the claims on 6 March 2023 and denied the claims.

Both witnesses gave evidence by affirmation.

The Complainant outlined details of his employment with the Respondent, which spanned 5 April 2022 to 30 January 2023.

He submitted that he had not received his full annual leave entitlement. He also submitted that he had not been notified of a change in his terms of employment in accordance with the provisions of Section 5 of the Act.

CA -00054808-001 Annual Leave

The Complainant outlined that he had been denied the full 20 days annual leave despite his having worked more than 1365 hours. He submitted that had received 16.6 days annual leave by the conclusion of his employment.

In his evidence, the complainant set out his entitlement to receive 20 days annual leave. He had tried to resolve the matter but was unsuccessful.

He argued that the Respondent position did not supersede the statutory leave as set down in the Organisation of Working Time Act, 1997

CA-00054808-003 Terms of Employment

The Complainant submitted that he had only received a statement of probationary employment from the respondent. This had not been updated when he moved on from probation.  He had not received notification of revised remuneration paid. The Complainant exhibited the front page of a written statement for probationary employment.

The Respondent outlined that the complainant worked from 5 April 2022 until his resignation dated 23 January 2023. The Respondent exhibited a copy of the contract of employment at hearing.

CA -00054808-001

The Respondent disputed the claim and confirmed that the complainant had commenced work on 5 April 2022 and had been paid 10-day annual leave pro rata in respect of 2022 and a further 6.67 days on cessation of employment.

The Respondent relied on the contractual clause on holidays.

Dfs’ holiday year runs from 1 January 2022. Your paid holidays will be 20 working days per year and proportionately less for less than 12 months service. Holiday Pay will be based on your current normal daily rate of remuneration.

The Respondent submitted that they did not have liability for any annual leave in this case.

CA-00054808-003

The Respondent disputed the claim.

Ms Kaulen, the Respondent outlined that the complainant was informed verbally of a change in his daily rate to €110 per day backdated to June 1, June 2022. There were no other changes in his terms of employment.

The Respondent submitted that she had forgotten to amend the terms in writing and the complainant had not raised the topic, she believed that he was “happy and satisfied”

I have been requested to make two decisions in this case. In reaching my decision, I have had regard for the parties’ submissions and their evidence.

I have also considered the contract of employment exhibited in full by the Respondent in the case.

CA -00054808-001

Entitlement to annual leave is set out in section 19 of the Organisation of Working Time Act, 1997

Entitlement to annual leave.

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.

The Complainant has submitted that as he had recorded 1,365 hours in the respondent employment, and this equated with a 20-day annual leave allowance.

The Respondent has relied on the “pro rata “principle reflected in the contract of employment.

For me, I found some guidance on the explanation of annual leave in the case of a fixed rate in:

Section 3 of the Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997, SI 475 1997

 (2) If the employee concerned's pay is calculated wholly by reference to a time rate or a fixed rate or salary or any other rate that does not vary in relation to the work done by him or her, the normal weekly rate of his or her pay, for the purposes of the relevant sections, shall be the sum (including any regular bonus or allowance the amount of which does not vary in relation to the work done by the employee but excluding any pay for overtime) that is paid in respect of the normal weekly working hours last worked by the employee before the annual leave (or the portion thereof concerned) commences or, as the case may be, the cesser of employment occurs

I did check with the complainant whether this was his first working position, and it was not.

I find that the complainant is mistaken in his interpretation of Section 19 (1) (a) of the Act. He had not worked a full year in the respondent employment; therefore, the Respondent was correct to apply the “pro rata “principle i.e., a proportionate analysis.

I have also found that he overlooked the contractual term present in his contract “and proportionately less for less than twelve months service.

In a Labour Court case of Bóthar Company limited by guarantee and Olivia Cumiskey DWT 2212, the Court applied the pro rata principle to the calculation of annual leave. I include this for illustrative purposes.

The Complainant was entitled under the Act at Section 19 to annual leave equal to four working weeks in the statutory annual leave year beginning on 1stApril 2020. In the case of the Complainant, an entitlement to annual leave equal to four working weeks amounts to twenty days’ annual leave. By pro-rata calculation, her statutory entitlement to annual leave in the period of the statutory annual leave year commencing on 1stApril 2021 and ending upon the date of termination of her employment, was three days’ annual leave.

It is common case that, by agreement in the employment, the agreed amount of annual leave available to the Complainant was twenty-five days in a calendar year.

For me, this demonstrates a real time application of the pro rata principle, which is applicable in this case.

The claim is not well founded.

CA-00054808-003

The Complainant has contended that he was not notified of a change in his employment status from probationary status. He has also submitted that his gross pay changed from €100 per day to €110 without a written confirmation.

The Respondent disputes a breach of the legislation and argued that the wage increase, while discussed verbally was not committed to writing.

The European Union (transparent and predictable working conditions) Regulations 2022 came into force in Ireland on 16 December 2022. 

This means that a probationary period cannot exceed a 6-month period save in exceptional circumstances “in the interest of the employee “

A contract of employment usually contains a section headed probationary period linked to service.

This complaint was submitted under section 5 of the Act.

Notification of changes.

5.—(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

a) the day on which the change takes effect, or

(b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee’s departure.

(2) Subsection (1) does not apply in relation to a change occurring in provisions of statutes or instruments made under statute  other than a registered employment agreement or employment regulation order, or of any other laws or of any administrative provisions or collective agreements referred to in the statement given under section 3 or 4.

I noted a typographical error on the contract to reflect 2021 rather than 2022. I accept this as an oversight in accordance with the provisions of Section 3 of the Act.

Contracts of employment existing before the commencement of European Union (Transparent and Predictable Working Conditions) Regulations 2022

5A. (1) Where, before the commencement of the European Union (Transparent and Predictable Working Conditions) Regulations 2022 (S.I. No. 686 of 2022), an employee has entered into a contract of employment with an employer, then, the employer shall, if so, requested by the employee, furnish to the employee a statement containing the particulars specified in —

(a) subsections (1) and (1A) of section 3, and

(b) subsections (1) and (1A) of section 4.

(2) Notwithstanding that an employee has not made a request under subsection (1), he or she is entitled to the rights specified in sections 6D to 6H.

Both parties accept that the Complainant received a pay rise in June 2022. Neither party presented the pay slip reflective of that pay rise.

This may have satisfied the written notification of change, however, neither party relied on it.

However, I find that the complainant was not appraised of the change in pay in writing in accordance with Section 5 of the Act. I note that he had not sought this record in accordance with section 5 (A) above.

, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

a)      the day on which the change takes effect.

Section 3(1)(a) k addresses Probationary periods of employment.

k) where a probationary period applies, its duration and conditions.

The Complainant was not appraised of the change from his probationary status in writing .m I note that he did not seek this record during his employment tenure.

I find this claim to be well founded.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA -00054808-001

Section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in relation to the complaint in accordance with section 19 of that Act.

The claim is not well founded.

CA-00054808-003

Section 7 of the Terms of Employment (Information) Act 1994 requires that I make a decision in relation in relation to the complaint in accordance with Section 5 of that Act.

I have found this claim to be well founded.

I order the Respondent to pay the Complainant €750 in compensation, just and equitable in respect of the contravention of section 5 of the Act.

Cesser Pay, Terms of Employment.