Complainant

Respondent

Parties

Sophie  Quinn

Metron Stores Limited t/a Iceland (in liquidation)

Representatives

Alexander Homits, Independent Workers Union

N/A

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-00057890-001

25/07/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00057890-002

25/07/2023

On 27 June 2022, the Complainant commenced employment as a Retail Assistant in the Respondent’s Limerick store. On 7 July 2023, the Complainant’s employment was terminated.  On 25 July 2023, the Complainant filed her Complaint Form with the WRC. At the time, the Complainant earned €11.30 per hour and worked 20 hours per week.

The Complainant submits that she was not paid her accrued annual leave when her employment ended. The Complainant submits that she had accrued 60 hours of annual leave. She is seeking €678 regarding financial loss and compensation.

The Complainant provided written and oral submissions.

The Complainant submitted that she was a Sales Assistant and that she worked on the tils and on the shop floor. She submitted that she heard that the Respondent’s stores would close in approximately two months. She said that the Manager brought the Union in, to talk to the workers.

The Complainant submitted that she decided to leave and provided two weeks’ notice to terminate her contract of employment. She stated that her Manager asked to complete a form, explaining why she was leaving. She said that she answered a number of questions on the form. She said that the Respondent was a good company and that she liked working there.

The Complainant said that the Respondent used an app to track annual leave, to which only the Managers had access. The Complainant stated that prior to leaving, she was shown a screen which suggested that she owed holiday pay. However, she stated that she had not taken any annual leave. She stated that she did not take annual leave at Christmas. She said that she never took any annual leave. She stated that when she needed time off, she worked it around her working week.

The Complainant stated that the annual leave year ran from 1 July until 30 June.

The Complainant submitted that the store closed down approximately two or three months after she left. The Complainant stated that she was paid only €10 for holiday pay.

There was no attendance by or on behalf of the Respondent.

On 19 December 2023, during the Case Management Conference, the Respondent’s correct name was confirmed and it is reflected in this Decision.

In a letter from the WRC dated 13 August 2024, the Respondent was informed of the details of the Hearing to take place on 24 September 2024. The same letter also set out the procedure regarding postponement requests.

On 18 September 2024, JW Accountants emailed the WRC. They confirmed that Mr. Joseph Walsh was appointed Liquidator of the Company (the “Liquidator”) on 7 September 2023, by Order of Mr. Justice Quinn of the High Court. They further confirmed that as this complaint relates to matters which predate the Liquidator’s appointment, he is not familiar with the background to the complaint and therefore is not in a position to assist in the Hearing.

In the circumstances, I am satisfied that the Respondent was on notice of the Hearing and decided not to attend.

CA-00057890-001 – Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act 1997, as amended:

The Law:

Pursuant to section 19(1) of the Organisation of Working Time Act 1997, as amended, (the “OWTA”), an employee is entitled to the following paid annual leave:

“(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.”

Section 23 of the OWTA provides for the payment of compensation to the employee for loss of annual leave on cessar of employment.

In Waterford City Council v. Mr. Stephen O’Donoghue, DWT0963, the Labour Court held:

“The only leave year which is cognisable for the purpose of determining if an employee received his or her statutory entitlement is that prescribed by the Act itself, that is to say a year starting on 1st April and ending on 31st March the following year. While different arrangements may be put in place for administrative purposes, in determining if a contravention of the Act occurred that Court can only have regard to the leave allocated to an employee in the statutory period.”

Section 27(3) of the OWTA empowers an adjudication officer to do one or more of the following:

“(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.”

Findings and Conclusion:

The Complainant submitted her Complaint Form to the WRC on 25 July 2023. In accordance with section 41(6) of the Workplace Relations Act 2015, the cognisable period for this complaint runs from 26 January 2023 until 25 July 2023.

The Complainant submitted that she had accrued 60 hours of annual leave for which she was not paid. The Complainant stated that she had not taken any annual leave. The Complainant’s evidence was uncontested.

Section 2 of the OWTA provides that the “leave year” is any year beginning on 1 April. However, in this matter, section 23(1)(b)(ii) and section 20 (1)(c)(ii) of the OWTA apply and so the leave accrued by the Complainant during the previous leave year can also be taken into account. Therefore, in this matter, the relevant period runs from 27 June 2022 until 31 March 2023; and from 1 April 2023 until 7 July 2023, when the Complainant’s employment ended. During this time, on a pro-rata basis, the Complainant accrued approximately 11 days or 88 hours of annual leave.

In the circumstances, I find the complaint is well founded. I note that the right to annual leave is derived from the Working Time Directive. In Von Colson & Kamann v. Land Nordrhein-Westfalen [1984] ECR 1891, the Court of Justice of the European Union (“CJEU”) made it clear that where such a right is infringed, the judicial redress provided should not only compensate for economic loss sustained but must provide a real deterrent against future infractions. Pursuant to section 27(3) of the OWTA, I order the following:

·      The Respondent to pay the Complainant €995 gross (approximately 88 hours’ pay) for the financial loss which the Complainant suffered; and

·      The Respondent to pay the Complainant compensation in the amount of €455 (approximately two weeks’ pay) for the breach of the Complainant’s statutory rights.

This award is just and equitable having regard to all the circumstances.

CA-00057890-002 – Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act 1997, as amended:

As noted above, this complaint was withdrawn.

CA-00057890-001 – Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act 1997, as amended:

For the reasons set out above, I find the complaint is well founded. I order the following:

·      The Respondent to pay the Complainant €995 gross (approximately 88 hours’ pay) for the financial loss which the Complainant suffered; and

·      The Respondent to pay the Complainant compensation in the amount of €455 (approximately two weeks’ pay) for the breach of the Complainant’s statutory rights.

CA-00057890-002 – Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act 1997, as amended:

As noted above, this complaint was withdrawn.

Organisation of Working Time Act 1997, Annual Leave.