Complainant

Respondent

Parties

Eric  Bentley

Carcharger EV Ltd

Representatives

  Self-represented

HR Manager

Act

Complaint Reference No.

Date of Receipt

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

CA-00061986-001

05/03/2024

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

CA-00061986-002

05/03/2024

The Complainant commenced employment with the Respondent on 2 January 2024. The Complainant’s employment was terminated when he did not successfully pass his probation.  The Complainant’s last date of employment with the Respondent was 29 February 2024.

The Complainant has submitted two complaints – one under the Payment of Wages Act 1991 alleging that he was not paid notice and the other under the Organisation of Working Time Act 1997 alleging that he was not paid for his outstanding annual leave on termination of his employment.

The Respondent refutes the Complainant’s complaints.

CA-00061986-002 – Payment in lieu of notice

The Complainant submits that his contract entitles him to notice of 30 days.  However, the Respondent only paid one week’s notice and said that the reason for this was that the Complainant’s employment was terminated during his probation.

The Complainant submits that his employment contract did not include a provision to pay one week’s notice during probation and only provides a 30-day notice period.

At the hearing, the Complainant confirmed that he had received payment for one week’s notice.

CA-00061986-002 – Outstanding holiday pay

The Complainant submits that he did not receive payment in respect of the 3 days of annual leave which he accrued while he was working for the Respondent. The Complainant further submits that if he had received 30 days’ notice in line with his contract, he would have been entitled to payment for 4.8 days outstanding annual leave.

CA-00061986-002 – Payment in lieu of notice & CA-00061986-002 – Outstanding holiday pay

The Complainant was employed by the Respondent for approximately 7 weeks. The Complainant’s contract ended when he did not successfully pass his probation. His last date of employment with the Respondent was 29 February 2024. The Complainant was notified in the probation outcome letter dated 21 February 2024 that he would be paid one week’s notice.

The Complainant’s last day of work was 21 February 2024 and his last date of employment was recorded as 29 February 2024 to include one weeks’ notice. The Complainant’s February payslip was issued on 28 February 2024 and included one week’s notice payment.

Upon receipt of the Workplace Relations Commission’s initial correspondence dated 8 March 2024, the HR Manager investigated the two complaints and realised that the Complainant was entitled to one month’s notice as per the terms and conditions of his employment. She also conferred with the payroll department who advised that they did not include payment in respect of outstanding annual leave owed to the Complainant in his February salary payment. 

The Respondent recognised that this was an oversight on its part, and it sought to rectify the situation.  Accordingly, the Respondent’s payroll department processed the Complainant’s outstanding notice and holiday pay during the March payroll run. The Complainant was paid €4,742.31 in respect of his outstanding notice pay.  He was also paid €843.07 which was the equivalent to the 3.2 days of annual leave which he had accrued during his 7-week period of employment with the Respondent.

CA-00061986-002 – Payment in lieu of notice

While this is a complaint under the Payment of Wages Act 1991, it should be noted that the entitlement to payment for notice is set out under the Minimum Notice and Terms of Employment Act 1973, as amended (the Act).  Section 4 of the Act provides as follows:

4. Minimum period of notice

(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

It is clear from the above, that in order to come within the protections of the Act, a complainant is required to have thirteen weeks or more continuous service with the Respondent.

In this case, there is no dispute that the Complainant commenced his employment with the Respondent on 2 January 2024.  There is also no dispute that, initially, the Complainant’s last date of employment was recorded as 29 February 2024 to include one week’s notice pay.  However, the Complainant’s contract of employment provided a notice period of one month.  Therefore, in accordance with the provisions of his contract of employment, the Complainant’s last day of employment was, in fact, 21 March 2024, to include one month’s notice pay.  Accordingly, I find that the Complainant was employed by the Respondent for a period of 79 days or 11.29 weeks (79/7).

I find, therefore, that that Complainant did not have sufficient service with the Respondent to come within the ambit of the Act.  Accordingly, I find that I do not have jurisdiction to investigate this complaint.

CA-00061986-002 – Outstanding holiday pay

Section 19 of the Organisation of Working Time Act 1997, as amended (the Act), provides as follows in relation to an employee’s 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)”

Section 23 of the Act provides as follows in relation to an employee’s entitlement compensation for accrued annual leave on the cessation of their 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 he would have received had he or she been granted that annual leave.”

At the hearing, the Respondent confirmed that it had paid the Complainant €843.07 in respect of the 3.2 days of annual leave which he accrued during his 7-week period of employment with the Respondent.  This was not disputed by the Complainant.  Elsewhere in this decision, however, I have calculated that the Complainant’s period of employment with the Respondent was, in fact, 11.29 weeks.

The Complainant’s contract of employment stipulated that his normal hours of work were 40 hours per week and that he worked from Monday to Friday inclusive.  His normal working week, therefore, was 5 days. In accordance with section 19(1)(a) of the Act cited above, his statutory annual leave entitlement was 20 days. 

There are 366 days or 52.29 weeks in 2024 as it is a leap year.  The Complainant’s weekly annual leave entitlement, therefore, was 0.38 days (20 days / 52.29 weeks).  As established above, he worked for 11.29 weeks for the Respondent giving him an annual leave entitlement of 4.32 days (11.29 weeks x 0.38 days).

As confirmed at the hearing, the Respondent paid the Complainant for 3.2 days accrued annual leave. I find, therefore, that there is a shortfall of 1.12 days in the payment by the Respondent in respect of the Complainant’s accrued annual leave.

The Respondent paid the Complainant €843.07 in respect of 3.2 days accrued annual leave which equates to payment per day of €263.46 (€843.07/3.2 days).  I find, therefore, that the Complainant is entitled to payment of 1.12 days of accrued annual leave at a daily rate of €263.46 which equates to €295.08.

CA-00061986-002 – Payment in lieu of notice

I declare that this complaint is not well founded.

CA-00061986-002 – Outstanding holiday pay

I declare that this complaint is well founded.  I direct the Respondent to pay the Complainant €295.08 for the economic loss in respect of the outstanding annual leave. I also direct the Respondent to pay the Complainant an additional €300 in compensation for the breach of the Complainant’s rights under the Organisation of Working Time Act 1997.

Insufficient service for statutory notice pay.  Calculation of accrued annual leave.