ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00046609
Parties:
| Complainant | Respondent |
Parties | Farman Mamand Saleh | Cihan Karaagac t/a Cleaboy Turkish Barber |
Representatives | Self-represented | Self-represented |
Complaint:
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-00057422-001 | 29/06/2023 |
Date of Adjudication Hearing: 13/05/2024
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The complaint is that the Respondent failed to pay the Complainant for annual leave on cessation of his employment.
Summary of Complainant’s Case:
The Complainant stated that he worked for the Respondent from October 2021 to 15th April 2023. He stated that he never received holiday pay. On one occasion the Respondent gave him an extra €20 for his upcoming holidays but never paid him a full week’s pay when he was on holidays.
Summary of Respondent’s Case:
The Respondent stated that he paid the Complainant more than was agreed from the beginning of his employment. He stated that he paid him €110 per day which was at least €20 over the minimum wage per day. He stated that he did not pay holiday pay and wanted to know how much the Complainant felt was owed to him.
Findings and Conclusions:
During the hearing, it was clarified to both parties by me that the case being heard is under the Organisation of Working Time Act for holiday pay owed and not paid. Separate complaints were dealt with by the Inspectorate Division of WRC.
In this instant case, I consider whether the Complainant is due payment for annual leave accrued and not paid for at the end of his employment.
The applicable law
Section 19 of the Act provides the formula for the calculation of annual leave for employees:
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), |
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(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 |
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(c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks): |
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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. |
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| Section 23 of the Act provides for payment on cessation 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. |
In accordance with the above provision of the Act, I find that the Complainant should have been paid annual leave pay for the period 2022/2023 and I find his complaint to be well founded. I require the Respondent to pay to the Complainant the sum of €2,200.
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I have decided that the complaint is well founded. I require the Respondent to pay to the Complainant the sum of €2,200.
Dated: 28-05-2024
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Key Words:
Annual leave compensation on cessation of employment. |