DWT2421

FULL DECISION

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00033099 (CA-00043814-003)

BACKGROUND:

The Employer appealed the Adjudication Officer's Decision to the Labour Court on the 14 October 2022.

A case management meeting was held on 23 May 2023. The Court held hearings on 1 February 2024 and 16 May 2024

The following is the Labour Court's Decision.

DECISION:

This is an appeal by Christian Porter (‘the Complainant’) of a decision of an Adjudication Officer (ADJ-00033099 – CA-00043814-003 dated 30 September 2022) under the Organisation of Working Time Act 1997 (‘the Act’).

Christian Porter did not attend the hearing at first instance and the Adjudication Officer held that, in the absence of any evidence to the contrary, the complaint by him against his former employer Excel Roofing Systems Limited (“the Respondent”)was not well-founded.

The appeal was lodged to the Labour Court on 14 March 2022. A case management meeting was held on 23 May 2023. This case is linked to  TED2411, PWD2444 and UDD2428. The Court heard the four appeals across two days on 1 February 2024 and 16 May 2024.

Summary of the Complainant’s Submission

The Complainant was not paid his outstanding leave entitlement when he left the employment of the Respondent in March 2021.

The Complainant accrued 20 days annual leave.  The Complainant took 6 days leave during the leave year. He was not paid for 14 days annual leave accrued in the leave year from 31 March 2020 to 30 April 2021.

Summary of the Respondent’s Submission

The Respondent accepts that the Complainant did not receive payment for his outstanding leave entitlement when he resigned his employment. The amount of annual leave accrued by the Complainant when his employment ended is disputed. 

The Complainant was entitled to payment for 10 days untaken leave when resigned his position in March 2021.  The Respondent attempted to make a payment to the Complainant for his 10 days accrued leave, which was rejected by the Complainant.

The Applicable law

The Act at Section 19 in relevant part provides as follows:

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.

Section 23 of the Act in relevant part provides as follows:

Compensation on cesser of employment.

23.(1) (a) Where —

(i) an employee ceases to be employed, and

(ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee,

the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave.

Deliberation and findings

The matter before the Court is a complaint that the Complainant was not paid his statutory annual leave entitlement when his employment ceased.

It is accepted that the Complainant accrued an entitlement to 20 days statutory annual leave during the relevant annual leave year which ran from 1 April 2020 to 31 March 2021. The parties disagree as to the level of annual leave taken by the Complainant in that statutory leave year.

The Respondent’s position is that the Complainant took 10 days annual leave during the relevant leave year, comprised of three days annual leave on 14, 15 and 16 September 2020, a further three days leave on 28, 29 and 30 September 2020, and four days annual leave in December 2020 when the business closed for the Christmas break.

The Complainant’s position is that he took six days annual leave in the relevant leave year, which included one days leave on an unspecified date in May 2020, and a further day’s leave on 28 September 2020. The Complainant accepts that he took four days annual leave in December 2020 when the business closed for the Christmas break.

The Court heard undisputed testimony from the Complainant that he was scheduled to be on leave for three days commencing on 28 September 2020, but received a text during his first day of leave, instructing him to return to work the following day to attend to a matter on the contract site. As a result, the Court accepts that the Complainant was not on annual leave on the 29 and 30 September and was at work attending to that work issue.

The Respondent submitted a document to the Court to support its assertion that the Complainant took 10 days annual leave. The Complainant questioned the validity of that document, which it asserts is a simple spreadsheet extract which does not reflect the Complainant’s annual leave in the relevant year.  The Respondent acknowledged that he had no witness evidence to verify the document submitted, or any other records to support the assertion that the Complainant took ten annual leave days during the relevant leave year.

Section 25 of the Act requires that an employer keep a record of any days and hours of leave in each week granted by way of annual leave to an employee. 

In the absence of satisfactory records from the Respondent recording when the Complainant availed of annual leave during the relevant leave year, the Court accepts the submission and evidence of the Complainant that he availed of six days’ annual leave in the statutory annual leave year beginning on 1 April 2020.

The Complainant’s employment terminated in March 2021. It is accepted by the parties that he accrued a statutory entitlement of 20 days annual leave in the leave year beginning on 1 April 202O and ending on the date of termination of his employment on 25 March 2021.

The Court finds that at the date of the termination of his employment the Complainant had availed of six days annual leave. The Court finds that when his employment ended the Complainant had accrued 14 days of statutory annual leave which he had taken when in the employment of the Respondent.

Consequently, the Court determines that the Respondent was in breach of the Act at Section 23 in that it failed to pay to the Complainant, on the cessation of his employment, an amount equal to the pay that he would have received had he availed of 14 days’ annual leave to which she had been entitled under the statute. The Court calculates that entitlement to be €3,181.50 (€227.25 x 14 days).

The Court finds that the complaint is well founded.

Where a contravention of the Act occurs the Labour Court having regard to the CJEU in C-14/83 Von Colson and Karmann v Land Nordrhein-Westfahlen [1986] C.M.L.R 430must make an award that is just and equitable having regard to all of the circumstances.  In the circumstances of this case, where the Respondent knowingly did not-comply with the law when it failed to by pay the Complainant his remaining leave entitlement when his employment ended, albeit the amount of that outstanding leave was in dispute, the Court considers that an award of four week’s remuneration to be just and reasonable.  The Court therefore awards the sum of €4,545.40 as compensation.

Decision

The Court decides that the Respondent was in breach of the Act at Section 23 and the complaint is well founded.

The Court orders the Respondent to pay the sum €3,181.50 to the Complainant for his outstanding annual leave entitlement.

In addition, the Court orders the Respondent to pay the sum €4,545.40 as compensation to the Complainant being the amount which the Court considers just and equitable having regard to all of the circumstances. 

The decision of the Adjudication Officer is set aside.

	Signed on behalf of the Labour Court
	Katie Connolly
AR	______________________
15 July 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Aidan Ralph, Court Secretary.