DWT241

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00037684 (CA-00049040-002).

BACKGROUND:

The Employer appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 44 Workplace Relations Act 2015. A Labour Court hearing took place on 20 December 2023. The following is the Decision of the Court: 

DECISION:

This is an appeal by Dalcassian Wines & Spirits Ltd Dalcassian Wines & Spirits Ltd of a decision of an Adjudication Officer in a complaint by Brendan Kelly under the Organisation of Working Time Act 1997 (the Act). The Adjudication Officer decided that the complaint was well founded.

The parties are referred to in this Determination below as they were at first instance. Hence, Brendan Kelly is referred to as the Complainant and Dalcassian Wines & Spirits Ltd Dalcassian Wines & Spirits Ltd is referred to as the Respondent.

Position of the Complainant

The Complainant was employed by the Respondent from 1 November 2021 until 28 February 2022. The Complainant was paid for two days of annual leave on the termination of his employment but was not paid for his full holiday entitlement of seven days.

The Complainant never received a contract of employment setting out any mandatory holiday leave. Under the Act an employer can nominate designated days as holidays if they have consulted with an employee not later than one month before the day on which the annual leave is due to commence. There was no indication or communication from the Company to advise that certain days were allocated as a mandatory holiday.

The Complainant rejects the assertion that the Complainant was granted annual leave when the company offices were closed over the Christmas period. The Complainant took no annual leave over that period.  The Company argue that 24 and 31 December 2021 were mandatory holidays, however, this was not communicated to the Complainant. He worked on both days and therefore at the time of the termination date, he had accrued seven days holidays. The Complainant was paid for two days leaving a balance of five days owed.

Position of the Respondent

The Respondent did not attend the appeal at first instance as the email received with the hearing details was assumed erroneously to be junk mail. The Respondent rejects the assertion that any breach of the Act occurred.

The Complainant was employed from 1 November 2021 until 21 February 2022. He accrued an entitlement to 6.26 days annual leave, which was rounded up to seven days. 

The company was closed over the Christmas except for a brief period to facilitate customer orders. The Complainant was on leave during this time.  When the Complainant ceased employment on 21 February 2021, he was paid a gross amount of €3000 which included payment for two days of annual leave. The Complainant was well treated and received more than his statutory entitlements.

Testimony of Andrew O’Brien – Commercial Director

Mr O’Brien gave evidence that the Complainant accrued an entitlement to five days annual leave during his employment. The Complainant was granted three days leave on Friday, 24 December 2021, Thursday, 30 December 2021 and Friday, 31 December 2021, and was paid two remaining days leave when he left the employment on 21 February 2023.

The Complainant was notified about the Christmas holiday arrangements on 13 December 2021 when he sent an email to the sales team with details of the Christmas delivery schedule and the Opening/Closing days over the Christmas period.  The Complainant was included in that email.

The arrangements were verbally confirmed to the Complainant on 23 December 2021 when he queried the opening/closing days over the Christmas period.  Mr O’Brien explained to him that he would be on leave until Tuesday 4 January 2022, unless required to work on Thursday 30 December for emergency orders.

On 24 December 2021, he received a phone call from the Complainant who was driving back from The White Sands Hotel and had met with the manager of the hotel. Mr O’Brien assumed that the Complainant was there on his own business for his own company. Mr O’Brien told the Complainant to go home and relax and they would talk after Christmas.

Under cross examination, Mr O’Brien said that mandatory holidays are generally set in the contract of employment. It is accepted that the Complainant was not issued with a contract of employment. He could not explain how the Complainant’s entitlement to five days annual leave was calculated.  The Complainant was issued with notice of the cessation of his employment on 21 February 2021 and was paid to the end of the month.  He was told that he did not need to work out his notice, and that he would be paid any outstanding monies. The Complainant was paid two remaining days leave when his employment terminated.

The Law

Entitlement to annual leave.

19.—(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.

Times and pay for annual leave.

20.— (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…”.

Discussion and conclusions

The complaint before the Court concerns the Complainant’s annual leave entitlement. There is no dispute that he received his full public holiday entitlement during the relevant period.

The Complainant asserts that he accrued an entitlement to seven days' annual leave during the period of his employment.  Notwithstanding evidence from Mr O’Brien that he understood the Complainant had an entitlement to five days annual leave, the Respondent’s position is that he accrued 6.26 days annual leave during that time, which for ease was rounded up to seven days.  It is accepted that the Complainant was paid for two days annual leave on the cessation of his employment.

Having regard to section 19(1) of the Act, the Court finds that the Complainant accrued a statutory entitlement to 6.7 days annual leave during his employment from 1 November 2021 to 28 February 2021 when his employment ceased.

The Respondent’s position is that the Complainant was granted three days annual leave on Friday, 24 December 2021, Thursday, 30 December 2021, and Friday, 31 December 2021. In response to questions from the Court, the Complainant’s representative confirmed that he was paid in full and did not work on those dates. However, it is submitted that these days cannot be regarded as days of statutory annual leave as the Complainant was never notified, as required under the Act, of the fact that they were designated as mandatory days of annual leave. 

Having regard to Mr O’Brien’s sworn evidence that he sent an email to the Complainant on 13 December 2021 about the Christmas closing arrangements and had a conversation with him about that matter on 23 December 2021, the Court had some difficulty with the assertion that the Complainant was unaware that the company office would close for most of the Christmas period, and that these three days were designated as annual leave days.

The Act provides that the times at which annual leave is granted to an employee shall be determined by the employer having regard to work requirements.  In this case the employer determined, as it is entitled to do, that the company offices would close on Friday, 24 December 2021, Thursday, 30 December 2021 and Friday, 31 December 2021. However, the Act specifies at s.20(1)(b) that an employer must consult with an employee, not later than 1 month before the day on which that annual leave is due to commence.  It accepted that no such consultation occurred in the within case. The Court was told the normal practice is that designated days of annual leave are set out in an employee’s contract of employment.  It is accepted that in the within case the Complainant was never given a written contract of employment.

In light of the above, the Court finds that the Complainant did not receive one months’ notice, as is required by the Act, in advance of the days of leave that he was granted on Friday, 24 December 2021, Thursday, 30 December 2021 and Friday, 31 December 2021.

The Court finds that the Complainant accrued an entitlement to 6.7 days annual leave during his employment. It is accepted that he was paid for two days annual leave on the cessation of his employment.

The Complainant was granted three days paid leave on 24 December, 30 December, and 31 December 2021. The Court finds that the Respondent did not comply with the notice provisions set out at s.20(1)(b) of the Act when specifying those dates as annual leave day.

No evidence was presented to the Court that the Complainant was granted the remaining 1.7 days of the 6.7 days annual leave accrued during his period of employment, and the Court determines that this element is an outstanding entitlement due to the Complainant.

For all reasons set out above, the Court finds that the Complainant was not granted his full statutory entitlements under Section 19 of the Act.  Accordingly, the Court finds that the within appeal is well founded. 

Decision

The appeal is well founded.

Having regard to all the circumstances, the Court measures the appropriate level of compensation which is just and equitable having regard to all the circumstances to be €692.31, which is the equivalent of one weeks’ pay. 

The Court orders the Respondent to pay compensation to the Complainant of that amount.

The decision of the Adjudication Officer is upheld.

The Court so decides.

	Signed on behalf of the Labour Court
	Katie Connolly
CDK	______________________
8 January 2024	Deputy Chairman