Complainant

Respondent

Parties

Pablo  Neira Garza

Rope Walk Car Park Limited The Doghouse Blues And Tea Rooms

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00061537-001

13/02/2024

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

CA-00061537-002

13/02/2024

The Complainant was employed as a Chef with the Respondent. He stated that he did receive wages that he was owed by the Respondent and that he was also entitled to holiday pay that he did not receive.

The Complainant stated that he was not paid his wages for one week that he worked for the Respondent. The Complainant also stated that he did not receive the holiday pay that he was entitled to.

The Respondent chose not to attend on the day of the hearing to give evidence in relation to the complaints.

CA-00061537-001:

Section 1 of the Payment of Wages Act 1991 (“the Act”) defines wages as:

“any sums payable to the employee by the employer in connection with his employment, including—

(a)   any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise,”

In Marek Balans -v- Tesco Ireland Limited [2020] IEHC 55 approving Dunnes Stores (Cornels court) Limited -v- Lacey [2007] 1 1.R. 478, it was stated a decision-maker must firstly determine what wages are properly payable under the employment contract before determining whether there has been a deduction under the Payment of Wages Act 1991.  While each case will turn on its own particular facts, it is necessary to ascertain, in the instant case, (1) whether the pay constituted a term of the Complainant’s contract and (2) if has there been a contravention of Section 5 of the Act.

Given the uncontradicted evidence of the Complainant, I am satisfied that he was not paid in the amount of €562.32 that he was owed by the Respondent.

CA-00061537-002:

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 weeklyrate, and ….”

The Complainant stated that he did not receive payment of his outstanding annual leave pay when he left his employment. He is seeking payment for the balance of his annual leave at the time he left his employment.

Having considered his uncontradicted evidence, I find that the complaint is well founded.

CA-00061537-001:

I find that this complaint is well founded for the reasons set out above and direct that the Respondent makes a net payment to the Complainant of €562.32 in respect of the wages that he was not paid.

CA-00061537-002:

I find that this complaint is well founded for the reasons set out above and direct that the Respondent makes a gross payment to the Complainant of €1,500 in respect of the holiday pay that he did not receive. This award includes an element of compensation.