Complainant

Respondent

Parties

Declan  Gargan

Shapoorji Pallonji Europe Limited

Complainant

Respondent

Anonymised Parties

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Representatives

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-00059589-001

24/10/2023

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

CA-00059589-002

24/10/2023

The Complainant stated that he did not receive his full outstanding holiday pay entitlements when his employment with the Respondent ended on 15 October 2023. He also stated that he did not receive a copy of his written terms and conditions of employment until November 2022, almost six months after he started working with the Respondent

The Complainant stated that he did not receive his full outstanding holiday pay entitlements when his employment with the Respondent ended on 15 October 2023. Specifically, he stated that he was entitled to receive 14 days outstanding holiday pay in accordance with the terms and conditions of his contract of employment which provided for 25 days annual leave.

He also stated that he did not receive a copy of his written terms and conditions of employment until November 2022, almost six months after he started working with the Respondent

The Respondent’s witness did not dispute any of the Complainant’s evidence in relation to his complaints.

CA-00059589-001:

The Law

Article 7 of the Working Time Directive (2003/88/EC) sets out the entitlement to paid annual leave as follows:

“Annual Leave 1.  Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice.  2. The minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is ended.”    

This provision is transposed into Irish lay by virtue of the enactment of Sections 19, 20 and 23 of the Organisation of Working Time Act.

Section 19 of the Organisation of Working Time Act 1997 outlines that an employee’s annual leave entitlement is based on the amount of time that they have worked during the year as is calculated in three ways:

(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):

Section 20 (1) deals with the times at which annual leave is granted to an employee and this is determined by the employer subject to a number of provisions:

(a)   The employer taking into account-

(i)               The need for the employee to reconcile work and any family responsibilities,

(ii)              The opportunities for rest and recreation available to the employee.

(b)   To the employer having consulted the employee or the trade union (if any) of which he or she is a member, not later than one month before the day on which the annual leave or, as the case may be, the portion thereof concerned is due to commence, and

(c)    To the leave being granted within the leave year to which it relates or, with the consent of the employee, within 6 months thereafter.

(2) The pay in respect of an employee’s annual leave shall –

(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, and ….”

The Complainant in his evidence stated that he was entitled to 25 days holiday per year. This complaint was referred to the WRC however under the Organisation of Working Time Act, 1997. As set out above, the entitlement to annual leave under the Act is capped at four working weeks or twenty days per year.

As the complaint was referred to the WRC on 24 October 2023, I can only calculate any annual leave that accrued in the six month period prior to this, namely from 25 April 2023 to 15 October 2023, the date on which the Complainant’s employment ended. This is a period of 24.8 weeks, which constitutes a holiday entitlement under the Act of 9.54 days or €2,293. As the Complainant received a payment in respect of outstanding holiday pay in the amount of €2,397, I find that the complaint is not well founded.

CA-00059589-002:

Preliminary Matter

The Law

Section 41 of the Workplace Relations Act 2015 states: -

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

and

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

The Complainant stated that he did not receive a copy of his written terms and conditions of employment until November 2022, almost six months after he started working with the Respondent. As the Complainant did not refer the complaint to the WRC until 24 October 2023, and in the absence of any reasonable cause having been presented to explain the delay in the referral of the complaint, I find that I do not have jurisdiction to hear the complaint.

CA-00059589-001:

I find that the complaint is not well founded for the reasons set out above.

CA-00059589-002:

I find that I do not have jurisdiction to hear the complaint for the reasons set out above.