Complainant

Respondent

Parties

Rachid  Boudissa

Aziz Balooch

Representatives

  Self-Represented

 Not Present

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-00058809-001

11/09/2023

The Complainant worked as a Barber and submitted a complaint he did not receive his annual holidays and sought payment of three weeks holiday pay.

The Complainant worked from `12/9/20232 to 29/8/2023 as a Barber. He did not receive any holidays or holiday pay and sought payment of three weeks pay in lieu. The Complainant earned 500 Euros gross per week.

A Complaint was received by the Director General of the Workplace Relations Commission by the Complainant on  September 11th 2023 alleging that his former employer contravened the provisions of the Organisation of Working Time Act 1997 in relation to him. The said complaint was referred to me for investigation. A Hearing for that purpose was held on February 13th 2024. There was no appearance by or on behalf of the Respondent at the Hearing. I am satisfied that the said Respondent was informed in writing of the date, time and place at which the Hearing to investigate the complaint would be held and were not present at the Hearing.

Section 19 of the Organisation of Working Time Act 1997 states the following;

“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), (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 the Complainants uncontested evidence he advised he worked from 12/9/20232 to 29/8/2023 and did not receive any holiday pay. The Complainant stated he was an employee of the Respondent at all times but did not receive any terms and conditions of employment when he commenced working for the Respondent. The Complainant advised the Hearing he received a contract when his employment was terminated but this contract stated he was an Independent Contractor. The copy of the Independent Contractor contract produced to the Hearing was not signed by either party and therefore has no validity. The Complainant contested he was a Contractor. The Complainant provided the Hearing with a payslip where he was shown as being an employee on the payslip. Based on the uncontested evidence of the Complainant I find he was an employee and entitled to holiday pay, which was not paid to him.

The complaint was submitted in September 2023 and related to the complete period of employment. The Organisation of Working Time Act allows a complaint for the six months up to the date it was submitted but an Adjudicator can extend this to twelve months for reasonable cause. Given the Complainant was not given any contract of employment when he commenced employment in September 2022, I find this is reasonable cause to extend the timeframe of the complaint and allow the Complainants request for reasonable cause and extend the time frame for his complaint to 12 months from the date submitted.

The Complainant was entitled to 15 days annual leave when his employment ended and which was unpaid. I find the complaint well founded. I award the Complainant three weeks pay totalling 1500 Euros.

Annual Leave