ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00049237

Parties:

	Complainant	Respondent
Parties	Jing Quan Xiao	Maxol Millmount Service Station Maxol Millmount

Representatives

Maria Geraghty SIPTU

Managment Support Services

Complaint(s):

Act	Complaint 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-00060469-001	11/12/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00060469-003	11/12/2023

Date of Adjudication Hearing: 24/04/2024 & 02/07/2024

Workplace Relations Commission Adjudication Officer: Brian Dalton

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint(s)to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s). The parties were requested to make further submissions concerning the facts being relied upon. The last submission was received on the 27th of August 2024.

Background:

The Employer holds the franchise for the Maxol garage and it’s a small family run business.

CA-00060469-001 relates to the following:

“I am not given compensation for working on a Sunday”

And CA-00060469-003 relates to the following:

“I did not receive my paid holiday/annual leave

Entitlement”

Summary of Complainant’s Case:

Annual Leave:

The Complainant does not accept that he ever agreed for his holiday pay to be incorporated into his hourly rate.

The text message opened by the Respondent that stated:

Two months ago holiday pay was included in the salary

Is not an admission that this was agreed between the parties.

Sunday Premium:

10 per cent premium per hour for Sunday working is below the average norms and comparators within the sector.

Rest Period:

From September 2023 to May 2024 the Claimant was working 7 days per week with no day off. The Employer then told him he had to take a day off, but he would not be making these hours up over the 6-day working week. His hours have reduced by 3 hours per week to 23.5 hours per week which is below his contractual hours of 26.5 hours per week.

Summary of Respondent’s Case:

Annual Leave:

The Employer stated that the Complainant was paid his annual leave as an 8% premium built into his hourly rate.

The Complainant works part time about 23 hours a week.

The Complainant asked for 4 weeks holidays leave from the 26th of June 2023 to the 9th of July 2023 and was scheduled off for that period. The Complainant preferred to take his leave in one block. While the payment method maybe unorthodox, the entitlement to paid leave was complied with. The Employer opened a text that it says confirms this arrangement.

A work colleague was called as a witness, to confirm that this arrangement was agreed between the employer and the Complainant.

The Employer has now changed this arrangement and now pays holiday pay when the leave is taken.

The leave year begins on the 1st of April and for the leave year 2023/2024 as of the date of the last hearing, the Complainant is due 79.18 hours leave.

And including the leave year 2024/2025 he has accrued an additional 23.92 hours.

The Employer stated that the following records the Complainant’s leave since 2019

• 2019/2020;52 weeks worked 0 holidays taken.

• 2020/2021: 36 weeks worked 117 days absent from work (most was related Covid and deciding not work)

• 2021/2022: 52 weeks worked 5 days leave

• 20222023: 51 weeks worked 20 days leave

Findings and Conclusions:

Annual Leave:

The Complainant claims the following holiday pay that he says was unpaid.

· 2018 hourly rate €9.50 x 40 hours x 4 weeks= €1520

· 2019 hourly rate €10.50 x 40 hours x 4 weeks= €1680

· 2020 hourly rate €11.00 x 40 hours x 4 weeks= €1760

· 2021 hourly rate €11.20 x 40 hours x 4 weeks = €1792

· 2022 hourly rate €12.00 x 40 hours x 4 weeks = €1920

· 2023 hourly rate €12.50 x 40 hours x 4 weeks = €2000

The Employer states that based on the following calculation as prescribed in the Act at section 19 of the Organisation of Working Time Act, 1997:

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):

The 8% calculation was incorporated into the hourly rate by agreement.

The following minimum rates of pay applied for the relevant years:

· 2018 €9.55

· 2019 €9.80

· 2020 €10.10

· 2021 €10.20

· 2022 €10.50

· 2023 €11.30

The Respondent stated that the Complainant worked 23 hours a week and not 40 hours.

The Complainant submitted a payslip dated 24th of October 2022 and it detailed a rate of €12 an hour and hours worked of 29 hours.

The Complainant’s claim concerning the amounts due cannot be confirmed as the hours detailed in submitted payslips actual worked are ranging between 23 hours to 29 hours per week.

In 2022 the difference between the minimum rate of pay and the actual rate paid was €1.50 or 14% and in 2023 it was €1.20 which was a 10% difference.

The claim that the parties agreed to incorporate a rate of 8% is not readily affirmed.

The evidence given at the hearing by another colleague to support the owner’s assertion that a holiday premium was included in the hourly rate was not compelling and confused.

A written contract of employment was opened by the Complainant and that was recently signed in July 2023 that in effect has reduced the hourly rate and now holidays are paid separately.

Sunday Premium:

The requirement to pay a Sunday Premium is accepted as necessary. However, the Respondent argues that the matter is not properly before this tribunal and arising from that statement and the reasons provided, a detailed consideration of all the relevant facts has in this case been provided in the decision relating to this claim.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

The following are the complaints before me:

CA-00060469-001 I am not given compensation for working on a Sunday Selected Redress Option Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

The Respondent stated that this issue has been resolved as follows:

Sunday Premium On the issue of the application of a Sunday Premium, this premium (10 cent per hour) was put in place with effect from 1st July prior to the date on which this claim was lodged. All applicable retrospection has since been paid, to the satisfaction of the Inspector. The Act states that reference must be made, in deciding on whether the premium now in place is “reasonable” to existing collective agreements in the sector or to practice in other enterprises in the industry. No such data has been provided and no such collective agreements exist and so the existing Sunday premium in place in the Respondents business cannot be altered. A claim for compensation for non-payment of Sunday premium is time barred for any Sunday worked six months before 11th December 2023.

CA-00060469-002 My employer has made an unlawful deduction from my wages and/or tips and gratuities What was the date of the deduction? 01/07/2023 What was the amount of the deduction? 250

This complaint is withdrawn as a payment of wages breach.

CA-00060469-003 I did not receive my paid holiday/annual leave entitlement Selected Redress Option Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

The Respondent stated that this was a technical breach:

The Respondent accepts that there was a breach of the Organisation of Working Time Act. It has since rectified the situation and is now compliant with the terms of the Act and other applicable legislation. It is the Respondents respectful submission that the breach was technical, in nature and not designed to unjustly benefit the employer at the expense of the employee. The established facts show that the arrangements between Mr Xiao and his employer were mutual in nature and consistent with the application of an 8% premium to the hourly rate to reflect Mr Xiao's entitlement to annual leave. Because Mr Xiao knew about the fact that he was entitled to paid holidays and agreed to have this entitlement paid as a weekly sum, he is not entitled to succeed in his claim for retrospective payment beyond the 6 months limit set out in Section 27 (4) of the Organisation of Working Time Act

On the 15th of May 2024 the Commission confirm to the Complainant the following:

Hi Maria,

I can confirm that complaint CA-60469-002 has now been closed (‘Drive off at petrol pump and i got charged for it’)

Complaints still active

CA – 60469 – 001 – Sunday Premium - OWTA

CA – 60469 – 003 – Holiday Pay/Annual Leave/rest period - OWTA

CA – 60469 – 004 – redacted

Sunday Premium CA – 60469 – 001:

Sunday Premium On the issue of the application of a Sunday Premium, this premium (10 cent per hour) was put in place with effect from 1st July 2023 prior to the date on which this claim was lodged. All applicable retrospection has since been paid to the satisfaction of the Inspector. The Act states that reference must be made, in deciding on whether the premium now in place is “reasonable” to existing collective agreements in the sector or to practice in other enterprises in the industry. No such data has been provided and no such collective agreements exist and so the existing Sunday premium in place in the Respondents business cannot be altered. A claim for compensation for non-payment of Sunday premium is time barred for any Sunday worked six months before 11th December 2023.

I note that in general, the Labour Court has tended to find that any premium below time and a third rate to be unreasonable as outlined in case law below:

Chicken & Chip S LTD T/A Chicken Hut - AND - DAWID MALINOWSKI

“The Court considers a premium of 33% of the hourly rate is reasonable.”

Viking Security . -v – Valent

“The Court measures the level of compensation for working on Sundays that is reasonable in all the circumstances at time-plus-one-third for each hour worked on a Sunday.”

I note the following case analysis in the Arthur Cox Yearbook 2019:

[24.14]

Trinity Leisure Holdings Ltd Trading as Trinity City Hotel v Kolesnik & Anor 51—High Court—appeal from Labour Court on point of law—Binchy J—Organisation of Working Time Act 1997, s 14(1)—payment of Sunday premium—contract of employment clear and unambiguous

This appeal was brought by the appellant, Trinity Leisure Holdings Ltd, from a decision of the Labour Court regarding the claims advanced by the respondent employees under the Organisation of Working Time Act 1997 (the 1997 Act). The appellant now sought before the High Court the following reliefs:

(i)An order declaring that the Labour Court erred in law in assuming jurisdiction under s 14(1) of the Act of 1997, or in applying that section to the respondents in granting them relief pursuant to the same;

(ii)An order allowing the appeal on the ground that the Labour Court erred in law in awarding Sunday premium to the respondents;

(iii)A declaration that the Labour Court erred in law in determining that the appellant had to tender evidence in relation to what element of the respondent’s hourly rate of pay was specifically referable to them having to work on Sundays;

(iv)A declaration that the Labour Court erred in law in failing to find the fact of the respondents having to work on Sundays had been taken into account in the determination of their pay.

The Labour Court found against the appellant in both cases brought by the respondents. They had argued that where a Sunday premium was included in an employee’s rate of pay, then some element of the employees pay must be specifically referable to the obligation to work on Sundays. As the employees’ contracts did not identify any element of the respondents’ pay as being a premium for working on Sundays, it then followed that the fact of the employees having to work on Sundays had not been taken into account; the employees were therefore entitled to be compensated in accordance with those provisions of s 14(1) of the 1997 Act. In finding in the respondents’ favour, the Labour Court held:

the [appellant] failed to tender any evidence to the court in relation to what, if any, element of the [respondent]’s hourly rate of pay was specifically referable to her contractual obligation to work on Sundays. It follows that the [appellant]’s cross appeal in this regard fails. At first instance, the adjudication officer directed the [appellant] to pay the [respondent] “a premium of 30% of the basic rate for all hours worked on Sundays falling within the period 25th September 2013 to 24th March 2014”. The court affirms that decision.

The appellant submitted that the decision of the Labour Court:

is based on three clearly identifiable errors of law as follows:—

(1)The Labour Court incorrectly assumed jurisdiction to consider the respondents’ claim to Sunday premium in circumstances where the employment contracts state that the requirement to work on Sundays had been taken into account in the determination of the respondents’ pay.

(2)The Labour Court failed to give any consideration as to whether or not it had any jurisdiction to examine a claim for Sunday premium in circumstances where the first limb of s 14(1) of the Act of 1997 has been complied with ie, where the contract states that the requirement to work on Sundays has been taken into account. Instead, the Labour Court proceeded directly to consider the claim of the respondents.

(3)Thirdly, if the Labour Court was entitled to find that the respondents were entitled to an additional Sunday premium (which is denied), it failed to consider afresh the appropriate premium to be awarded to the respondents, but rather simply endorsed the amounts awarded by the adjudication officer, without due consideration, including inviting submissions from the appellant, and having regard to the wording of s 14(2) of the Act of 1997.

The respondents, on the other hand, submitted that no error of law on the part of the Labour Court had been identified by the appellant.

The respondents’ contract of employment provided, inter alia, that ‘the hourly rate of pay includes your Sunday premium based on you getting every third Sunday off’.

The High Court observed that it was common case that the respondents were required to work two out of three Sundays. He noted that the Labour Court arrived at a finding of fact that the requirement to work on Sundays was not taken into account in the determination of the respondents’ pay. That finding was arrived at by the Labour Court on the basis that the appellant ‘failed to tender any evidence to the court in relation to what, if any, element of the [claimants]’ hourly rate of pay was specifically referable to [their] contractual obligation to work on Sundays’. However, this was a conclusion on a matter of law; the Labour Court found that a clear statement made in a contract of employment signed by both parties may not be relied upon, and instead must be proven in a particular way. In drawing this conclusion, the Labour Court made an error of law:

It did so firstly by ignoring the express statement in the contracts of employment of the respondents, that their hourly rate of pay includes their Sunday premium. Secondly it did so by interpreting the Act of 1997 in such a manner as to impose an obligation on an employer either to ensure that a contract of employment is drawn up in a particular way ie, to explain by way of a breakdown any statement to the effect that an hourly rate takes into account the obligation to work on a Sunday, or, alternatively, to adduce oral testimony at the hearing of a complaint pursuant to s. 14 of the Act of 1997 in order to prove a statement agreed expressly to by an employee in his/her contract of employment.

Indeed, the High Court described the wording of the respondents’ contract as ‘clear and unambiguous’. It was the respondents’ case that the High Court: ought to take account of the vulnerable position that employees such as the respondents are in when presented by an employer with such contracts, and that it is the duty of the employer to ensure that the contract clearly identifies the portion of the hourly rate of pay that relates to Sunday work. Having failed to so provide in the contract, or to give any evidence on the issue, the appellant, it is submitted, has failed to establish that the rate of pay of the respondents takes account of the requirement to work on a Sunday for the purposes of s 14(1) of the Act of 1997.

This was rejected by the High Court:

The difficulty with this line of argument is that it ignores not just the clear and unambiguous language of the contracts of employment, but also the fact that the respondents do not appear to have given any evidence on the question. If they did, it is not recorded either in the decision of the adjudication officer or the Labour Court, and nor were any submissions made to me as regards the evidence that they gave on the question.

32. While a statement in a contract that the rate of pay takes account of the requirement to work on Sundays may not always be conclusive, if an employee wishes to assert that the rate of pay does not do so then in my opinion he or she must advance some credible evidence to rebut the express provision of the employment contract, or at least so as to shift the onus of proof in the matter to the employer, although he or she will still have to overcome the parole evidence rule. However, it may be possible to do so. For example it might be that events have overtaken the contract, and that surrounding circumstances no longer reflect that which was originally agreed. For example, if the rate of pay provided for in the contract, was at the time the contract was completed, greater than the statutory minimum wage, but is no longer so at the time the complaint is advanced, it is difficult to see how that rate of pay could still be said to reflect the requirement to work on a Sunday, since that is the minimum rate of pay which the employer must in any event pay. Whatever the reason, faced with written evidence of his or her own agreement that his/her hourly rate of pay takes into account an obligation to work on Sundays, an employee advancing a claim under s 14(1) of the Act of 1997 must lead some evidence to explain why he/she claims that what is stated in the contract is not correct. In failing to do so, the employee leaves the contract unchallenged, and the employer is under no obligation to go into evidence on the issue

Highlighting that the only evidence presented to either forum on the question at issue was the contract of employment in each case, which contained a clear and unambiguous statement, ie, that the rate of pay included the Sunday premium, based upon the respondents having every third Sunday off, the Court upheld the appeal and dismissed the respondents’ claim under s 14(1) of the 1997 Act.

Footnotes

Trinity Leisure Holdings Ltd Trading as Trinity City Hotel v Kolesnik & Anor [2019] IEHC 654.

Section 14(1) states:

14.—(1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely—

The first limb to be satisfied before proceeding to assessing the claim for 33.33% is whether or not the employer has taken account of the requirement to work on Sunday in the determination of the Complainant’s pay.

The Contract of Employment signed on the 11th of July 2023 states that the hourly rate of pay is €12.50 and there is no reference to what rate will apply for Sunday work.

In the Respondent’s submission 3 payslips dated the 29/04/2024; 25th/03/2024 and the 11th/03 2024 show that holiday is calculated at .1 which I assume to be 10%.

A 4th payslip dated 6/11/2023 does not detail any premium for Sunday Work. He may or may not have worked that Sunday.

However, section 25 of the Act states:

25.—(1) An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this Act and, where applicable, the Activities of Doctors in Training Regulations] are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making.

(2) The Minister may by regulations exempt from the application of subsection (1) any specified class or classes of employer and regulations under this subsection may provide that any such exemption shall not have effect save to the extent that specified conditions are complied with.

(3) An employer who, without reasonable cause, fails to comply with subsection (1) shall be guilty of an offence.

(4) Without prejudice to subsection (3), where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act or the Activities of Doctors in Training Regulations] in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.

The Contract of Employment does not aver to what Sunday Premium will apply. The Employer has produced no records to support his contention that payments were made during 2023. The next question that arises can an employer commence a payment at their sole discretion without agreement. The case law relating to contract terms state they must be reasonable:

In Devlin v Electricity Supply Board PW 550/2011 the tribunal noted that:

However, a discretion, although it may seem absolute, is not unfettered and must be exercised reasonably and in good faith Horkaluk v Cantor Fitzgerald [2004] 1 ICR 697 and Lichters & Hass v Depfa [2012] IEHC 10.

Hedigan J in Lichters affirmed that a discretion is not unfettered:

In Clarke v Nomura International [2000] IRLR 766 the Court of Appeal for England and Wales considering this type of situation observed: -

"An employer exercising a discretion which on the face of the contract of employment is unfettered or absolute, will be in breach of contract if no reasonable employer would have exercised the discretion in that way."

He went on to say that,

10 6.9 Whether in the context of a contract in restraint of trade if that is the case, or to determine the proper exercise by the defendant of its discretion as an employer, the question for the court is as to whether it can be considered that in the circumstances of this case no reasonable employer would have acted as the defendant company did

There is no provision in the contract of employment signed in July 2023 about what rate should apply for Sunday work. There is clear reference to a Sunday Premium in 2024 payslips as .1 or 10%. If the Employer corrected the breach as asserted in July 2023 the obvious question is why was such a provision not contained in the contract signed in July 2023? It cannot be reasonably argued that a party is bound to a contract term because it appears on a payslip without agreement. That is not how a reasonable employer would have acted. For these reasons I find that the Complainant is not bound by the 10% premium unilaterally introduced.

The next limb of the test requires:

(a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or

(b) by otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances, or

(c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or

(d) by a combination of two or more of the means referred to in the preceding paragraphs.

However, 14(2) is being relied upon the Respondent as the Complainant has not referenced any Collective Agreements:

(2) Subsection (3) applies to an employee where the value or the minimum value of the compensation to be provided to him or her in respect of his or her being required to work on a Sunday is not specified by a collective agreement.

(3) For the purposes of proceedings under Part IV before a rights commissioner or the Labour Court in relation to a complaint that this section has not been complied with in relation to an employee to whom this subsection applies (“the first-mentioned employee”), the value or the minimum value of the compensation that a collective agreement for the time being specifies shall be provided to a comparable employee in respect of his or her being required to work on a Sunday shall be regarded as the value of compensation to be provided under this section to the first-mentioned employee that is reasonable having regard to all the circumstances:

Provided that if each of 2 or more collective agreements for the time being specifies the value or the minimum value of the compensation to be provided to a comparable employee to whom the agreement relates in respect of his or her being required to work on a Sunday and the said values or minimum values are not the same whichever of the said values or minimum values is the less shall be regarded, for the purposes aforesaid, as the value of compensation to be provided under this section to the first-mentioned employee that is reasonable having regard to all the circumstances.

(4) Unless the fact of such a value being so specified has come to the notice of the rights commissioner or the Labour Court, as the case may be, it shall be for the person who alleges in proceedings referred to in subsection (3) that a value of compensation of the kind referred to in that subsection is specified by a collective agreement mentioned in that subsection to show that, in fact, such a value is so specified.

(5) In subsection (3) “comparable employee” means an employee who is employed to do, under similar circumstances, identical or similar work in the industry or sector of employment concerned to that which the first-mentioned employee in subsection (3) is employed to do.

(6) References in this section to a value or minimum value of compensation that is specified by a collective agreement shall be construed as including references to a value or minimum value of compensation that may be determined in accordance with a formula or procedures specified by the agreement (being a formula or procedures which, in the case of proceedings referred to in subsection (3) before a rights commissioner or the Labour Court, can be readily applied or followed by the rights commissioner or the Labour Court for the purpose of the proceedings).

The Complainant has referenced in their submission a rate of 33.33% and section 14(4) provides that:

The value specified of 33.33% has come to the notice of this Adjudicator as reported in Industrial Relations New Journal as a norm applied in collective agreements for a comparable employee who are in the service industry and tend to be paid the minimum rate of pay or a low rate of pay, comparable to the work of this Complainant. Comparable does not mean the same rather the shares features that are common. This Adjudicator is aware of other collective agreements in the retail section for smaller outlets where in fact a higher rate is paid. The rate of 33% for working on Sunday has come to the notice of this Adjudicator.

CA – 60469 – 003 – Holiday Pay/Annual Leave/rest period – OWTA:

The Complainant relies on a text message from the Complainant which is in Chinese that he accepted that his pay incorporated a premium for holiday pay. However, that link is tenuous and particularly in the light of very weak corroborating evidence from another work colleague. The Complainant is vulnerable to exploitation and on balance I cannot find that the Employer provides a credible alternative explanation. On the contrary the assertion and right to holiday pay has given rise to a reduction in his hourly rate of pay.

At the last day of hearing the Employer was requested to produce records detailing what holiday pay the Complainant received and what holidays were taken.

The reliance by the Respondent that he built in an 8% rate into the hourly rate is not credible as the variance between the minimum rate of pay and the actual rate of pay does not equate to 8%.

On this evidence the Complainant has not been paid his holiday pay. There is no written contract term to support this contention.

As referenced already where there is a prima facie case made out that no paid annual leave was received and the Employer carries the burden to produce records.

(3) An employer who, without reasonable cause, fails to comply with subsection (1) shall be guilty of an offence.

The Employer has provided an account and submission; however, no records have been produced to rebut the Complainant’s allegations that he received no paid holidays or was scheduled off as required.

Dear Mr Dalton, As requested, the information you sought (hours worked and leave taken) and a brief, summary submission on the question of why Mr Quan Xiao is not entitled to payment in respect of annual leave he did not take over the five years prior to the lodgement of this claim or for further payment of an enhanced Sunday Premium

The Respondent produced a typed sheet detailing what it believes is the correct amount of hours owing; however, there are no contemporaneous records produced to support that written account.

The entitlement to paid annual leave is as follows:

9.—(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.

(1A) For the purposes of this section, a day that an employee was absent from work due to illness shall, if the employee provided to his or her employer a certificate of a registered medical practitioner in respect of that illness, be deemed to be a day on which the employee was—

(a) at his or her place of work or at his or her employer’s disposal, and

(b) carrying on or performing the activities or duties of his or her work.]

(2) A day which would be regarded as a day of annual leave shall, if the employee concerned is ill on that day and furnishes to his or her employer a certificate of a registered medical practitioner in respect of his or her illness, not be regarded, for the purposes of this Act, as a day of annual leave.

(3) The annual leave of an employee who works 8 or more months in a leave year shall, subject to the provisions of any employment regulation order, registered employment agreement, collective agreement or any agreement between the employee and his or her employer, include an unbroken period of 2 weeks.

(4) Notwithstanding subsection (2) or any other provision of this Act but without prejudice to the employee’s entitlements under subsection (1), the reference in subsection (3) to an unbroken period of 2 weeks includes a reference to such a period that includes one or more public holidays or days on which the employee concerned is ill.

(5) An employee shall, for the purposes of subsection (1), be regarded as having worked on a day of annual leave the hours he or she would have worked on that day had it not been a day of annual leave.

(6) References in this section to a working week shall be construed as references to the number of days that the employee concerned usually works in a week

The Employer stated that the record for holidays is:

The Employer stated that the following records the Complainant’s leave since 2019

• 2019/2020; 52 weeks worked 0 holidays taken.

• 2020/2021: 36 weeks worked 117 days absent from work (most was related Covid and deciding not work)

• 2021/2022: 52 weeks worked 5 days leave

• 2022/2023: 51 weeks worked 20 days leave

I note the CJEU decision in King v Sash Windows (In Case C‑214/16, REQUEST for a preliminary ruling under Article 267 TFEU, from the Court of Appeal (England & Wales) (Civil Division), made by decision of 30 March 2016, received at the Court on 18 April 2016, in the proceedings Conley King v The Sash Window Workshop Ltd, Richard Dollar,)

First, according to the Court’s settled case-law, the right to paid annual leave cannot be interpreted restrictively (see judgment of 22 April 2010 Zentralbetriebsrat der Landeskrankenhäuser Tirols, C‑486/08, EU:C:2010:215, paragraph 29). Thus, any derogation from the European Union system for the organisation of working time put in place by Directive 2003/88 must be interpreted in such a way that its scope is limited to what is strictly necessary in order to safeguard the interests which that derogation protects (see, to that effect, judgment of 14 October 2010, Union syndicale Solidaires Isère, C‑428/09, EU:C:2010:612, paragraph 40 and the case-law cited).

59 In circumstances such as those at issue in the main proceedings, protection of the employer’s interests does not seem strictly necessary and, accordingly, does not seem to justify derogation from a worker’s entitlement to paid annual leave.

60 It must be noted that the assessment of the right of a worker, such as Mr King, to paid annual leave is not connected to a situation in which his employer was faced with periods of his absence which, as with long-term sickness absence, would have led to difficulties in the organisation of work. On the contrary, the employer was able to benefit, until Mr King retired, from the fact that he did not interrupt his professional activity in its service in order to take paid annual leave.

61 Second, even if it were proved, the fact that Sash WW considered, wrongly, that Mr King was not entitled to paid annual leave is irrelevant. Indeed, it is for the employer to seek all information regarding his obligations in that regard.

62 Against that background, as is clear from paragraph 34 of the present judgment, the very existence of the right to paid annual leave cannot be subject to any preconditions whatsoever, that right being conferred directly on the worker by Directive 2003/88. Thus, as regards the case in the main proceedings, it is irrelevant whether or not, over the years, Mr King made requests for paid annual leave (see, to that effect, judgment of 12 June 2014, Bollacke, C‑118/13, EU:C:2014:1755, paragraphs 27 and 28).

63 It follows from the above that, unlike in a situation of accumulation of entitlement to paid annual leave by a worker who was unfit for work due to sickness, an employer that does not allow a worker to exercise his right to paid annual leave must bear the consequences.

64 Third, in such circumstances, in the absence of any national statutory or collective provision establishing a limit to the carry-over of leave in accordance with the requirements of EU law (see, to that effect, judgments of 22 November 2011, KHS, C‑214/10, EU:C:2011:761 and of 3 May 2012, Neidel, C‑337/10, EU:C:2012:263), the European Union system for the organisation of working time put in place by Directive 2003/88 may not be interpreted restrictively. Indeed, if it were to be accepted, in that context, that the worker’s acquired entitlement to paid annual leave could be extinguished, that would amount to validating conduct by which an employer was unjustly enriched to the detriment of the very purpose of that directive, which is that there should be due regard for workers’ health.

65 It follows from all the foregoing considerations that the answer to the second to fifth questions is that Article 7 of Directive 2003/88 must be interpreted as precluding national provisions or practices that prevent a worker from carrying over and, where appropriate, accumulating, until termination of his employment relationship, paid annual leave rights not exercised in respect of several consecutive reference periods because his employer refused to remunerate that leave.

And the employer now estimates the following:

For leave year 2024/25 the balance is now: 13 weeks at 23 hours per week at 8% 23.92 hours accumulated this year. Hours Total outstanding as of June 30th 2024 23.92 + 79.18 103 hours.

The right to accrued leave continues until cessation of employment.

The employer has reduced the Complainant’s salary to the minimum rate of pay and now pays 4 weeks holidays that are scheduled off.

CA – 60469 – 003 Decision Annual Leave:

The Complaint is well founded.

I have determined that the Complainant until very recently never received holiday pay and that the assertion by the employer that it was incorporated into the hourly rate is not credible based on an 8% calculation with reference to the Act. This is so as the variance between the minimum rate and the actual rate does not equate to 8%. The fact that he was receiving a higher rate over and above the minimum rate has been used to rationalise away the obligation to be paid holiday pay. No records have been produced by the Employer to accurately detail the Complainant’s holiday entitlement and contemporaneous record of payment and time off. Arising from lack of clarity and the onus on the Employer to provide records I determine that holiday accrual should be calculated at follows:

Annual Leave Entitlement:

The Complaint is well founded that the Complainant was not paid his annual leave.

I determine that the Complainant on cessation of employment is owed the following or to be paid as addtional leave during his employment:

2019/2020 €10.50 x 26 hours x 4 weeks = €1092 gross

2020/2021 hourly rate €11 x 26 hours x 4 weeks= €1,144 reduced by 50% as absent without leave during Covid= €572 gross

2021/2022 hourly rate €11.20 x 26 hours x 4 weeks =€1,164.80 gross

2022/2023 hourly rate €12.00 x 26 hours x 4 weeks = €1248 gross

I also determine that for failing to schedule the Complainant’s annual leave as required under the Act and for the periods detailed, that a serious breach has occurred related to the wellbeing of this Complainant and the weight that must be given to a breach of a right protected under European Law and to the implications for his Safety and Health.

Section 27(3) of the Organisation of Working Time Act 1997 states:

(3) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely:

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’ s employment.

I award the Complainant 6 months Compensation arising from the failure to schedule annual leave as required by law and the failure to pay him his annual leave. Based on 2024 payslips and a gross salary of €337 gross weekly x 26 = €8,762 Compensation for a breach of a statutory right. This is an amount that is proportionate, effective, and dissuasive. A disturbing fact of this case is the right to pursue a claim gives rise to a reduction in the hourly rate; however, that is not a matter before me. I am mindful that this business is relatively small and have had regard to that fact in determining the amount to be paid in compensation.

Rest Period:

The Complaint is well founded.

The Respondent has produced no records.

Weekly rest periods.

13.—(1) In this section “daily rest period” means a rest period referred to in section 11.

(2) Subject to subsection (3), an employee shall, in each period of 7 days, be granted a rest period of at least 24 consecutive hours; subject to subsections (4) and (6), the time at which that rest period commences shall be such that that period is immediately preceded by a daily rest period.

(3) An employer may, in lieu of granting to an employee in any period of 7 days the first-mentioned rest period in subsection (2), grant to him or her, in the next following period of 7 days, 2 rest periods each of which shall be a period of at least 24 consecutive hours and, subject to subsections (4) and (6)—

(a) if the rest periods so granted are consecutive, the time at which the first of those periods commences shall be such that that period is immediately preceded by a daily rest period, and

(b) if the rest periods so granted are not consecutive, the time at which each of those periods commences shall be such that each of them is immediately preceded by a daily rest period.

(4) If considerations of a technical nature or related to the conditions under which the work concerned is organised or otherwise of an objective nature would justify the making of such a decision, an employer may decide that the time at which a rest period granted by him or her under subsection (2) or (3) shall commence shall be such that the rest period is not immediately preceded by a daily rest period.

(5) Save as may be otherwise provided in the employee’s contract of employment—

(a) the rest period granted to an employee under subsection (2), or

(b) one of the rest periods granted to an employee under subsection (3),shall be a Sunday or, if the rest period is of more than 24 hours duration, shall include a Sunday.

(6) The requirement in subsection (2) or paragraph (a) or (b) of subsection (3) as to the time at which a rest period under this section shall commence shall not apply in any case where, by reason of a provision of this Act or an instrument or agreement under, or referred to in, this Act, the employee concerned is not entitled to a daily rest period in the circumstances concerned.

`I don’t consider the breach in this case to be as serious as the annual leave breaches. However, it is concerning that again a pursuit of a right has given rise to a reduction in weekly hours. However, that is not before me as a complaint. I award €500 as compensation for this breach.

Sunday Premium CA – 60469 – 001 Decision:

The Complaint is well founded.

This business is a small family run enterprise whose affairs appear to have been unorthodox. A balance is required to be struck between addressing the breach and the ability of the business to continue as it operates under relatively small margins.

Section 27(3) of the Organisation of Working Time Act 1997 states:

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

The Complainant is required to comply with section 14 of the Act and I determine that he shall be compensated by his Employer for being required to work (on Sunday) by the following means, namely—

· the value to be paid for Sunday work shall be 1.33 times of the current hourly rate.

· the respondent has failed to comply with the Act and pursuant to 27(c) I award €1000 compensation an amount that is proportionate.

Dated: 05-11-2024

Workplace Relations Commission Adjudication Officer: Brian Dalton

Key Words:

Annual Leave-Sunday Premium-Rest Period