ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00046095
Parties:
| Complainant | Respondent |
Parties | Yassine El Gardoum | Kieran Dunleavy Decor Ltd |
Representatives | Self-represented | Self-represented |
Complaints:
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-00056980-001 | 02/06/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act 1997 | CA-00056980-002 | 02/06/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 14 of the Protection of Employees (Fixed-Term Work) Act 2003 | CA-00056980-003 | 02/06/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act 1994 | CA-00056980-005 | 02/06/2023 |
Date of Adjudication Hearing: 03/10/2023
Workplace Relations Commission Adjudication Officer: Kara Turner
Procedure:
In accordance with section 41 of the Workplace Relations Act 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
On 3 October 2023, I conducted a remote hearing in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020, as amended, and S.I. 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings.
Mr Yassine El Gardoum (the “complainant”) and Mr Kieran Dunleavy of Kieran Dunleavy Decor Ltd (the “respondent”) attended the remote hearing.
The hearing was held in public, and the parties were advised that my decision would publish with the names of the parties.
The complainant submitted documentation in support of his case prior to the hearing and I accepted relevant documentation from the respondent after the hearing, which was exchanged with the complainant. I have considered all the documentation received and the information provided by the parties at the hearing.
Background:
The complainant was employed by the respondent as a painter from September 2022 until May 2023.
The complaint form, received 2 June 2023, indicated for adjudication two complaints under the Organisation of Working Time Act 1997 and a complaint under the Protection of Employees (Fixed-Term Work) Act 2003. The complainant also raised a complaint about non-receipt of a written statement of terms of employment and I addressed this complaint under the Terms of Employment (Information) Act 1994.
The facts were not in dispute between the parties. |
Summary of Complainant’s Case:
The complainant worked with the respondent as a painter on a full-time, permanent basis. He was never given a written contract and did not receive payment on cessation of his employment for annual leave due to him. The complainant asked the respondent for the annual leave pay due to him. |
Summary of Respondent’s Case:
The respondent said that it overlooked giving the complainant a written statement of his terms of employment. The complainant received payment for 5 days annual leave in December 2022. The respondent accepted that the complainant is due payment for annual leave accrued up until the time he finished in employment in May 2023. |
Findings and Conclusions:
CA-00056980-001 This complaint concerned the complainant not having received his paid annual leave entitlement under the Organisation of Working Time Act 1997 (the “1997 Act”). Section 19 of the 1997 Act sets out 3 different ways for calculating annual leave entitlement, based on an employee having worked hours in the leave year. Section 19(1) of the 1997 Act in relevant part provides: “. . . 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.”
In relation to taking annual leave, section 20 of the 1997 Act provides as follows:- “(1) the times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements and subject—
(a) to 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 1 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— (i) within the leave year to which it relates, (ii) with the consent of the employee, within the period of 6 months after the end of that leave year, or (iii) where the employee— (I) is, due to illness, unable take all or part of his or her annual leave during that leave year or the period specified in subparagraph (ii), and (II) has provided a certificate of a registered medical practitioner in respect of that illness to his or her employer, within the period of 15 months after the end of that leave year.”
Section 2 of the 1997 Act defines the leave year as a year beginning on any 1st day of April.
Sections 41(6) and 41(8) of the Workplace Relations Act 2015 set out the relevant time limits for referral of complaints to the Workplace Relations Commission; a complaint must be presented within 6 months of the date of contravention to which the complaint relates, which may be extended to 12 months where it is established that the failure to present the complaint within 6 months was due to reasonable cause. Application of the law The complaint under the 1997 Act was presented to the Workplace Relations Commission on 2 June 2023. By reason of the definition of a leave year in the 1997 Act and the time limits in the 2015 Act, as set out above, the cognisable period covered by this complaint is the leave year commencing 1 April 2022 to 31 March 2023. The evidence before me was that the complainant’s normal hours of work were 40 hours per week, Monday to Friday, and he was paid €15.00 gross per hour. The complainant’s statutory entitlement to paid annual leave in respect of the period from commencement of employment on 26 September 2022 until 31 March 2023 amounts to 86.4 hours. The respondent submitted that the complainant was paid for 5 days annual leave (40 hours) in December 2022. The respondent submitted a bank statement which showed a debit amount in January 2023 bearing the complainant’s name and “HOL” as a reference, but did not produce any records to show compliance in relation to the granting of paid annual leave. I find that the respondent did not grant the complainant his statutory paid annual leave entitlement in respect of the leave year 1 April 2022 to 31 March 2023, in breach of section 20 of the 1997 Act. The complaint is well founded, and I award the following by way of compensation: €696.00 (being the monetary value of the annual leave entitlement of 46.4 hours not granted to the complainant) and €1,200.00 in compensation which I consider just and equitable having regard to all of the circumstances, including in particular that the contravention was not disputed. CA-00056980-002 This complaint is that the complainant was not compensated for the loss of his annual leave entitlement on cessation of employment. Section 23 of the 1997 Act deals with payment of accrued and untaken annual leave on cessation of employment. As per tax details submitted, the complainant’s employment ended on 20 May 2023. I have reviewed the documentation provided and note that the only payment the complainant received on cessation of his employment was his normal weekly wages in respect of his last week at work. The respondent accepted at the hearing that there was annual leave due to the complainant when his employment finished. In the absence of any employment records, I have calculated the value of the accrued annual leave due to the complainant on 20 May 2023, in respect of the leave year commencing 1 April 2023, to be €336.00. This is based on the complainant’s normal 40 hour working week and a rate of €15.00 per hour. The complaint of a breach of section 23 of the 1997 Act is well founded and I award the following by way of compensation: €336.00 (being the monetary value of the cesser pay the complainant should have received) and €700.00 compensation which I consider just and equitable having regard to all of the circumstances, including in particular where the non-payment was not disputed and the complainant’s requests to the respondent to pay the annual leave on cessation went unanswered. CA-00056980-003 The complainant was employed by the respondent on a permanent basis. I find that the complainant was not a fixed-term employee and lacks the legal standing to maintain this complaint under the Protection of Employees (Fixed-Term Work) Act 2003. Accordingly, my decision is that this complaint is not well founded. CA-00056980-005 The complaint presented to the Commission included that the complainant was never provided with a contract. The respondent said this was an oversight. The respondent was required at the relevant time by section 3(1) of the Terms of Employment (Information) Act 1994 (the “1994 Act”) to provide the complainant with a statement in writing concerning certain particulars of the complainant’s terms and conditions of employment within two months of the complainant commencing employment. I find that section 3(1) of the 1994 Act was contravened by the respondent and that this was a subsisting contravention up until the time the complainant’s employment terminated on 20 May 2023. I find this complaint to be well founded and order the respondent to pay to the complainant compensation of €1,200.00, equivalent to 2 weeks’ remuneration, which I consider just and equitable having regard to all the circumstances.
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Decision:
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-00056980-001 I find that the complaint is well founded and require the respondent pay to the complainant compensation of €1,896.00, which is made up of €696.00 being the monetary value of annual leave not granted to the complainant and €1,200.00 compensation which does not constitute arrears of pay. CA-00056980-002 I find that the complaint is well founded and require the respondent pay to the complainant compensation of €1,036.00, which is made up of €336.00 cesser pay and €700.00 compensation which does not constitute arrears of pay. CA-00056980-003 For the reasons set out above, I find that this complaint is not well founded. CA-00056980-005 I find that the complaint is well founded and order the respondent pay to the complainant compensation of €1,200.00. |
Dated: 14th December 2023
Workplace Relations Commission Adjudication Officer: Kara Turner
Key Words:
Annual leave entitlement – Cesser pay – Written statement of terms |