Complainant

Respondent

Parties

Grazina  Matuleviciene

Marguerite McGuinness trading as Shhh By Maggie

Complainant

Respondent

Anonymised Parties

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Representatives

  Self-Represented

Self-Represented

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-00062803-002

14/04/2024

The Complainant referred a complained to the WRC on the 14th April 2024 wherein she claimed that she was not paid her annual leave entitlement on the cessation of her employment.

The Complainant commenced employment with the Respondent on the 10th July 2023. She gave the Respondent notice on the 13th February 2024 and her employment ended on the 2nd March 2024. She worked full time and earned €13.00 per hour. Throughout her employment she only received 2 or 3 payslips. When her employment ended she was not paid for accrued but untaken annual leave. Post hearing, on the 7th November 2024, the Complainant sent an email to the WRC wherein she stated that based on the hours worked by her during the course of her employment she believed that she was owed 84.88 hours holiday pay which she calculated as being €1,103.44.

The Respondent stated that according to her accountant the Complainant was paid everything due and owing to her and that she had in fact been overpaid.

In response to questions from the Adjudication Officer the Respondent stated that she could not be expected to know what monies had or had not been paid to the Complainant and she did not know whether there was any annual leave days remaining to be granted to the Complainant when her employment with the Respondent ended. She stated that she was busy running two businesses and that it was her accountant’s job to know whether annual leave had been taken and what was or was not owed to employees.  She did not have a copy of the Complainant’s payslips or a record of the annual leave days taken by her or a record of her accrued but untaken annual leave entitlement up to the date of the end of her employment.

The Respondent was afforded an opportunity to submit payslips and working time records post hearing on or before the 11th November 2024.

Whilst the Respondent responded to the Complainant’s email of the 7th November 2024 on the evening of the 11th November 2024 stating that the Complainant worked 679.9 hours and her total holiday hours were 48 hours no payslips or working time records were received by the WRC from the Respondent.

In making these findings, I have considered the documentation submitted by the parties, the oral evidence adduced at the hearing summarised above and the oral and written submissions made by and on behalf of the parties at the hearing.

The Relevant Law

Compensation on Cesser of Employment

Section 23 of the Organisation of Working Time Act 1997 (hereinafter referred to as “the 1997 Act”) provides for 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.

Redress

Section 27 of the 1997 Act provides:

27(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 the circumstances, but not exceeding 2 years remuneration in respect of the employee's employment.

It was common case, as confirmed by the Respondent at the hearing, that the Complainant’s employment commenced on the 10th July 2023, that her employment ended on the 2nd March 2024, that she worked full-time and earned €13.00 per hour.

The Complainant presented as a credible witness and stated that she had accrued but untaken annual leave entitlement when her employment ended which she was not paid for. Throughout her employment the Complainant only received a payslip on two or three occasions. She estimated that she had 84.88 annual leave hours which were not taken by her for which she was due payment.

At the hearing the Respondent was not in a position to say what annual the Complainant had accrued, what annual leave was taken by the Complainant, whether she was paid holiday pay or what monies had or had not been paid to the Complainant when her employment ended and she presented no evidence of compliance with the 1997 Act. I found the position adopted by the Respondent during the course of the hearing remarkable, particularly her evidence that it was not her responsibility as the Complainant’s employer to ensure compliance with Irish employment law but her accountant’s responsibility and I am concerned that no evidence was furnished by the Respondent to show that records were kept in the prescribed manner as provided for under S.I. No. 473/2001 - Organisation of Working Time (Records) (Prescribed Form and Exemptions) Regulations 2001 (hereinafter referred to as “S.I. No. 473/2001”), despite the Respondent being furnished with an opportunity to submit payslips and working time records to the WRC post hearing. For the avoidance of doubt, having considered the content of the Respondent’s email to the WRC on the 11th November 2024 I find that it does not satisfy the requirements of S.I. 473/2001.

The circumstances in which compensation under section 27(3)(c) of the 1997 Act should be awarded in addition to outstanding holiday entitlements were considered by the Labour Court in Kennedy's Café Bar Ltd v. A Worker DWT26/2000 and Cementation Skanska v. Carroll DWT38/2003. In the latter case, the Labour Court said that, given the requirements of Article 7 of the Working Time Directive, an award of compensation for loss of annual leave “need not be limited to the value of the lost holidays”. The Court recognised that, where the right to annual leave is infringed, the redress provided “should not only compensate for economic loss sustained but must provide a real deterrent against future infractions”.

The aforementioned cases were recently considered by the Labour Court in Bothar Company Limited by Guarantee v. Olivia Cumiskey DWT2211/2022 wherein the Court stated that they were “authority for the proposition that, arising from the decision of the CJEU in Sabine von Colson and Elisabeth Kamann v. Land Nordrhein-Westfalen (Case 14/83), redress awarded in the case of a breach of entitlement in domestic law deriving from a Directive of the EU should be such as to have a deterrent effect and amount to more than purely nominal compensation.”

Whilst in the instant case there was no evidence that the Respondent impeded, obstructed or otherwise prevented the Complainant from availing of her statutory entitlement to annual leave, there remained a disregard on the part of the Respondent for the obligation to keep proper records.

In all the circumstances I find that the complaint is well-founded.

For the reasons set out above I decide that the complaint is well-founded and I require the Respondent to:

1. Pay to the Complainant 84.88 hours annual leave payment at €13.00 per hour amounting to €1,103.44.

2. Pay to the Complainant compensation of €500 for a breach of the Organisation of Working time Act 1997.

3. Ensure, upon receipt of this Decision and onwards, that proper records in line with S.I. No. 473/2001 - Organisation of Working Time (Records) (Prescribed Form and Exemptions) Regulations 2001, be maintained.