Complainant

Respondent

Parties

Brendan Bannigan

Galgorm Group

Representatives

Not represented 

Represented by Management

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-00058821-001

13/09/2023

The respondent is a supplier of restaurant and catering products and the complainant worked for them as a driver from September 2nd 2021.  His contract provided that he worked from 5.00am to “finish” and he was initially employed for three days a week, with an expectation that this would increase to four days a week.  From the information provided to me at the hearing, it appears that, by 2022, the complainant was working 40 hours or more each week.  At the termination of his employment, he was earning €14.50 per hour.  The complainant’s last day at work was April 12th 2023 and his employment was formally terminated on May 18th. 

Under s.23 of the Organisation of Working Time Act 1997 (“the OWT Act”), the complainant requested an investigation into how his pay for holidays accrued and not taken was calculated when he finished working for the respondent.

This complaint was submitted to the WRC on September 9th 2023.  On December 1st, the complainant sent a detailed submission to the WRC, setting out his complaints regarding pay for holidays and public holidays.  On January 18th 2024, the case officer at the WRC sent the complainant a copy of the respondent’s submission in preparation for the hearing on February 23rd.  On February 6th, the complainant sent a second submission, in which he identified an issue with his breaks at work.  He claims that he was not paid for one hour’s break every day, although his contract provides that he is entitled to unpaid break of 30 minutes and an unpaid break of 15 minutes.  At the hearing on February 23rd 2024, the complainant asked me to include a complaint about a deduction of 15 minutes pay for every day that he worked from September 2021 until April 2023.  The complainant last worked for the respondent in April 2023 and therefore, this complaint about breaks has been submitted outside the six-month time limit which is set out at s.41(6) of the Workplace Relations Act 2015.  The respondent was not on notice of this new complaint and, for these two reasons, I do not intend to investigate it.

In March 2023, the complainant’s hourly rate of pay was increased from €13.00 to €14.50.  In his submission of February 2nd 2024, he argued that he should have been paid this new rate from January 2023.  This complaint is also outside the time limit for me to conduct an enquiry.

Complaint 1:  Calculation of Annual Leave

On the form he submitted to the WRC, the complainant claimed that he was not paid the correct amount of pay for holidays and public holidays when he was employed by the respondent from September 2nd 2021 until May 18th 2023.

The respondent’s HR and payroll department is based in Northern Ireland.  In the book of documents he submitted for the hearing, the complainant included an email of February 28th 2022 from the HR manager, Mr Speer, who attended the hearing.  From this email, I understand that the company calculates their employees’ entitlement to holidays based on 20 days of annual leave and nine public holidays, which are considered together as an entitlement to 29 days’ paid leave.  The HR manager, Mr Speer advised the complainant that, based on his four-day working week arrangement, he was entitled to four fifths of 29 days’ holidays in each leave year.

With this approach, the complainant would have been entitled to 23 days’ holidays a year.  He wrote to Mr Speer on May 9th 2022 to explain that, in his opinion, if he worked 1,365 hours in the year, he would be entitled to 20 days of annual leave, in accordance with s.19(1)(a) of the OWT Act.

Mr Speer replied on May 11th to inform the complainant that he had taken six days and booked four days of annual leave, leaving him with six days not taken up to the end of the 2022 leave year.  He had also had the benefit of four public holidays.

On May 16th, the complainant replied to Mr Speer and directed him to the website of the Citizens Information Service regarding annual leave and public holidays.  He asked for a calculation of the hours he had worked since he commenced on September 2nd 2021.

I understand from the correspondence submitted by the complainant that he had some conversations on the phone with Mr Speer about this issue and he explained his understanding of how annual leave is calculated in the Republic of Ireland.  On July 22nd, Mr Speer sent the complainant a breakdown of the hours he worked each month from September 2021.

The complainant claims that he was not given a sufficient explanation of the way his holiday pay was calculated from September 2021 until July 2022.  On July 25th, he wrote to Mr Speer and highlighted discrepancies between some of the days marked as holidays and days that he claims he was at work in 2021 and 2022.  The complainant claims that he worked on December 17th 2021, which is marked as a holiday and that he also worked on May 4th, 5th and 6th which are marked as holidays.

Mr Speer replied and said that there were no clock in records for the complainant for December 17th 2021.  He also said that he would make a change to the software so that holiday pay could be recorded on payslips.  The complainant replied with text message evidence from the supervisor, Mr Darren McMullen, who also attended the hearing, seeking his estimated time of arrival back at the depot on December 17th.

On August 22nd 2022, Mr Speer wrote to the complainant and said that he went through his queries with Mr McMullen and that the complainant was owed pay for 16 hours and that this would be included in his August wages.  The complainant claims that this is proof that the company has “insufficient knowledge of the rules for payment of wages in the Republic of Ireland” and that there is insufficient information on payslips.

On November 15th 2022, the complainant wrote to Mr Speer and, based on his wages of €21,895 up to September 30th 2022, he claimed that he was “comfortably above the 1,365 hours’ threshold” and that he qualified for 20 days’ annual leave.

Complaint 2:  Payment of Wages in February 2022

The complainant claims that he was not paid “holiday pay” for two days’ holidays that he took on January 25th and February 1st 2022.  His payslip shows that he was paid “wages” for these days.

Complaint 1:  Calculation of Annual Leave

2021

The respondent’s submission shows that the HR manager, Mr Speer calculated that, based on 8% of the hours he worked between his start date of September 2nd and December 31st 2021, the complainant was entitled to 61.25 hours of holidays.  This is in accordance with the 8% calculation at s.19(1)(c) of the OWT Act which is used to determine the entitlement to annual leave of employees who work less than 1,365 hours in a leave year.  The complainant was paid for 54 hours, leaving a shortfall of 7.25 hours. 

2022

The respondent’s submission shows that, between January and December 2022, the complainant worked for 1,856 hours.  Mr Speer calculated that, in accordance with s.19(1)(c) of the OWT Act, he was entitled to 8% of the hours that he worked as holidays.  Based on this assumption, Mr Speer calculated that the complainant was entitled to 148.5 hours of holidays in 2022.  His records show that he was paid for 144 hours of holidays and, based on this, Mr Speer submitted that there was a shortfall of 4.5 hours’ pay for annual leave.

2023

The respondent’s submission shows that, from January 1st until his employment ended on April 18th 2023, the complainant worked for 451 hours.  Mr Speer calculated that, based on the 8% approach at s.19(c) of the OWT Act, he was entitled to 36 hours’ annual leave.  Mr Speer submitted that, as he was paid for 18 hours’ holidays, this resulted in a shortfall in pay for 18 hours.

In his submission, Mr Speer apologised to the complainant for the lack of clarity regarding his holiday entitlement which was due to his personal and family responsibilities.

Holiday Pay at Termination of Employment

Section 23 of the OWT Act sets out the timeframe for consideration of any entitlement to accrued annual leave when an employee has ceased employment:

(1) (a) Where -

(i) an employee ceases to be employed, and

(ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee, 

the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave.

(b) In this subsection -

"relevant period" means -

(i) in relation to a cessation of employment of an employee to whom subparagraph (i) of paragraph (c) of subsection (1) of section 20 applies, the current leave year[.]

This means that an employee is entitled to pay for the holidays not taken in the leave year in which their employment is terminated.  As the complainant finished working for the respondent on May 18th 2023, he is entitled to pay for holidays not taken between January 1st and May 18th 2023.

(ii) in relation to a cessation of employment of an employee to whom subparagraph (ii) of the said paragraph (c) applies, that occurs during the first 6 months of the current leave year –

(I) the current leave year, and

(II) the leave year immediately preceding the current leave year[.]

The effect of this subsection (ii) is that an employee whose employment ceases in the first six months of a leave year is entitled to pay for holidays not taken in that leave year and the preceding year.  As the complainant left his job on May 18th 2023, which was in the first six months of the leave year, he is entitled to pay for holidays not taken in the preceding leave year, 2022.

Subsections (iii) and (iv) of this s.23 are relevant to employees who have been absent due to illness for long periods before their employment ends and they are not relevant to the complainant’s claim.

Based on the provisions of s.23(1) therefore, I have jurisdiction to consider a complaint regarding pay for annual leave that the complainant did not avail of in 2022 and 2023.  Section 21(c) of the OWT Act provides that, with the consent of an employee, annual leave may be carried over from one leave year to the next and may be taken in the first six months of the following leave year.  For this reason, I intend to consider any outstanding leave due to the complainant from 2021 and carried over into 2022.

Findings Regarding Annual Leave

2021

In the submission he sent to the WRC on February 6th 2024, the complainant disagreed with Mr Speer’s calculation that he was entitled to 61.25 hours of holidays in 2021.  He claims that he was entitled to 67.74 hours.  He makes this argument based on the wages he received in 2021 and the hours for which he was paid.  These hours include pay for holidays and it is my view that the complainant’s calculations regarding his entitlement to annual leave in 2021 is not correct.  I accept the respondent’s position that he was entitled to 61.25 hours’ holidays in 2021. 

As he was entitled to carry his untaken annual leave from 2021 into 2022, I am satisfied that, at the termination of his employment, the complainant is entitled to pay for the shortfall of 7.25 hours’ holiday pay due to him from 2022. 

In a submission received on February 6th 2023, in response to Mr Speer’s submission, the complainant claimed that he was entitled to an additional nine hours’ pay for a holiday that he did not take on December 17th 2021.  I am satisfied that the complainant was paid his wages for working on that day and that there is no outstanding entitlement to holiday pay.

2022

Section 19(1) of the OWT Act 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)[.]

The remaining subsections refer to employees who worked less than 1,365 hours in a leave year and are therefore not relevant to the complainant in 2022.

For the leave year 2022 therefore, the complainant was entitled to 20 days’ holidays.  I note from the respondent’s submission that he was generally paid for working nine hours each day.  In 2022 therefore, he was entitled to 180 hours’ holidays.  He was paid for 144 hours, leaving a shortfall of 36 hours. 

2023

In relation to the calculation of annual leave for 2023, I accept Mr Speer’s approach to calculate the complainant’s annual leave entitlement based on 8% of the hours he worked.  I also accept that the complainant is entitled to be paid for 18 hours of holidays for which he was not paid when his employment ended.

Pay for Public Holidays not Taken at Termination of Employment

A complaint about the non-payment of pay for public holidays must be considered in accordance with the time limit set out at s.41(6) of the Workplace Relations Act 2015.  This provides that I have authority to consider any contravention in relation to an entitlement to a public holiday that occurred in the six months before this complaint was submitted to the WRC.  Section 41(8) provides that, for “reasonable cause,” I may extend the time limit to 12 months.  Due to the difficulties experienced by the complainant when he sought clarity from the respondent, whose HR Department was based in Northern Ireland, I have decided to extend the time limit to 12 months.  This complaint was submitted to the WRC on September 13th 2023.  Therefore, I have authority to investigate any contravention regarding the public holidays that occurred between September 14th 2022 and May 18th 2023, when the complainant finished working with the respondent.

Seven public holidays fell between September 14th 2022 and May 18th 2023:

1.       October 24th – last Monday in October

2.       December 26th – St Stephen’s Day

3.       December 27th – substitute for Christmas day falling on a Sunday

4.       January 1st – New Year’s Day

5.       St Patrick’s Day – March 17th

6.       Easter Monday – April 10th

7.       The first Monday in May – May 1st

The respondent’s submission shows that the complainant was paid for seven of the nine public holidays that fell in 2022, leaving him with an outstanding entitlement to two days’ pay.  Their submission also shows that, in 2023, the complainant was not paid for the public holidays that fell on January 1st and May 1st.  He was absent due to illness on May 1st, but he is entitled to pay for that day.  He is therefore entitled to pay for two days’ public holidays in 2023.

Based on these findings, I am satisfied that the complainant is entitled to pay for four public holidays for which he was not paid in the 12 months before he submitted this complaint to the WRC.  Based on a nine-hour working day, the complainant has an outstanding entitlement to 36 hours’ pay.

In respect of the leave year 2021, I have concluded that the complainant is entitled to pay for a shortfall of 7.25 hours’ holiday pay.

In respect of the leave year 2022, I have concluded that the complainant is entitled to pay for a shortfall of 36 hours’ holiday pay.

In respect of the leave year 2023, I have concluded that the complainant is entitled to pay for a shortfall of 18 hours’ holiday pay.

In respect of his entitlement to public holidays between September 14th 2022 and the date on which he submitted this complaint to the WRC, I have concluded that the complainant is entitled to pay for 36 hours.

Based on these conclusions, when his employment ended, the complainant had an outstanding entitlement to 97.25 hours’ pay for annual leave and public holidays.

I decide that this complaint is well founded.  In calculating the amount to be awarded in redress, I have decided to use the complainant’s final rate of pay of €14.50 per hour.  I therefore direct the respondent to pay the complainant compensation €1,410.  As this award is compensation for a breach of a statutory right, it is not subject to deductions for tax, PRSI or USC.

Pay for holidays and public holidays when employment ends