ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00040795
Parties:
| Complainant | Respondent |
Parties | Rabei Hathat | Good Enuf to Eat Banqueting (Mr William Fitzsimons) |
Representatives | Self-Represented | Non-Appearance |
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-00052113-001 | 05/08/2022 |
Date of Adjudication Hearing: 08/03/2023
Workplace Relations Commission Adjudication Officer: Michael McEntee
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.
In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021 the Parties were informed in advance that the Hearing would normally be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for.
The required Affirmation / Oath was administered to all witnesses present. The legal perils of committing Perjury were explained to all parties.
There were no issues raised regarding confidentiality in the publication of the decision.
Background:
The issue in contention was the alleged Nonpayment of Holiday pay to the Complainant on the cessation of his employment.
The employment, as a Kitchen Porter, began on the 20th June 2022 and ended on the 24th of July 2022.
The rate of pay was €13 per hour and weekly hours varied but were generally in the 45-hour average area.
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1: Summary of Complainant’s Case:
The employment ended on the 24th July 2022 although not taken of Revenue System until the 12th August 2022. In his final pay Slip covering up to the 24th July 2022 (copy supplied) no Holiday Pay is mentioned. The Complainant stated that he had worked 210 hours in the period of employment and was accordingly due 8 % (16.8 hours holiday Pay) as per the Organisation of Working time Act,1977. He also raised the question for Adjudication as to whether or not he qualified for the August Bank Holiday. It was his opinion that he was and he was formally claiming the Bank Holiday payment. |
2: Summary of Respondent’s Case:
The Respondent did not attend the Hearing and no evidence was submitted. I was satisfied that proper notice of the time, date and place of the Hearing had been served on the Respondent. |
3: Findings and Conclusions:
3:1 The Law - Holidays and Public Holidays Sections 19, 20, 21 and 23 of the Organisation of Working Time Act,1997 apply. 3:2 Ordinary Holidays Section 19 details three possible calculation for determining Annual leave. The most favourable is to be chosen. Section 19 (1) (c) is applicable here – 8% of the Hours worked. The Pay Slips indicated a total of 210 Hours – 8% is equivalent to 16.8 hours. At €13 per hour this is a sum due of €218.40 in favour of the Complainant. 3:3 Public Holiday complaint. The Complainant gave sworn evidence and supplied a Revenue document that showed he was in employment until the 7th August 2022. The August Bank Holiday in 2022 was Monday the 1st of August. The Complainant had given notice to the employer to expire on the 31st July 2022. Section 23 (2) of the Organisation of Working Time Act,1977 states 2) Where— (a) an employee ceases to be employed during the week ending on the day before a public holiday, and (b) the employee has worked for his or her employer during the 4 weeks preceding that week, the employee shall, as compensation for the loss of his or her entitlements under section 21 in respect of the said public holiday, be paid by his or her employer an amount equal to an additional day’s pay calculated at the appropriate daily rate.
Accordingly, as referred to in the Act, the Employee here was on Notice Pay until the 31st of July (even if not required to work it by the Employer) and was not Terminated with Revenue until the 7th August 2022. The other factor is that even if the end date is accepted to be the 24th this end date qualifies as being within a “week” of the “day before the Public Holiday”. It follows that the Complainant is due a Public Holiday payment. The amount is deemed to be the average Daily Rate. The Complainant worked some 210 hours in the five weeks prior to the Public Holiday - 210 /5 = 42 hours / 5 = 8.4 hours - rounded to 8 hours. 8 * €13 = €104 Bank Holiday Pay.
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4: Decision:
CA-00052113-001
Section 41 of the Workplace Relations Act 2015 and Section 27 of the Organisation of Working Time Act, 1997requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions of the cited Acts.
4:1 Ordinary Holiday Pay
As set out above at Section 3.2 an amount equivalent to 16.8 Hours holiday pay is due - €13 * 16.8 = € 218.40
4:2 Bank Holiday Pay
As set out at 3:3 above a Bank Holiday Payment for the August 1st, 2022, is due.
Based on figures supplied, under Oath, the sum of 8 hours pay is due €13 * 8 = € 104
4:3 Final Summary
The sums of € 218.40 and € 104 are due to be paid by the Respondent to the Complainant.
Dated: 20th September 2023.
Workplace Relations Commission Adjudication Officer: Michael McEntee
Key Words:
Annual Leave & Public Holiday Pay on cessation of employment, Organisation of Working Time Act,1997 |