ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00035183
Parties:
| Complainant | Respondent |
Anonymised Parties | A Contract Manager | An Agency |
Representatives |
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Complaint(s):
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-00046312-001 | 20/09/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00046312-002 | 20/09/2021 |
Date of Adjudication Hearings: 28/04/2022 & 16/05/2023 & 09/09/2024
Workplace Relations Commission Adjudication Officer: Patricia Owens
Procedure:
On 20 September 2021 the Complainant referred two complaints to the Workplace Relations Commission pursuant to Section 27 of the Organisation of Working Time Act, 1997. In accordance with Section 41 of the Workplace Relations Act, 2015 and following the referral of the case to me by the Director General of the Workplace Relations Commission, a remote hearing was convened on 28 April 2022. The notice for the hearing had issued to the parties by post on 7 March 2022, however, at hearing the Respondent requested an adjournment on the basis that it had only just received the notification. The adjournment was granted. At hearing the Respondent was advised of the need to ensure that the WRC had the correct address for correspondence purposes.
A further remote hearing was scheduled for 16 May 2023 and notification of the hearing was issued to the Respondent by post on 10th March 2023. Notification of the details for joining the remote hearing was issued to the Respondent by post on 12th May (Friday) and the hearing was due to take place on the morning of 16th May (Tuesday). The Complainant attended the remote hearing; however, the Respondent did not attend. On 30 May 2023 the Respondent emailed the WRC advising that it had just received notice of the hearing scheduled for 16th May 2023 and seeking clarification as to how it might reschedule the hearing. The WRC wrote to the Respondent on behalf of the Adjudication Officer and advised that “In circumstances where it is evident that the notification of details for joining the remote hearing may not have reached you on time the Adjudication Officer has advised that she will send the case for rescheduling at the earliest possible opportunity.”
In that correspondence the Respondent was also advised that future correspondence would be issued to the Respondent by registered post and to the email address which was used by the Respondent to communicate on 30 May 2023. In addition, the Adjudication Officer advised that “there is an onus on the parties to a complaint to provide contact details to the WRC which are readily accessible to that party, and which are in frequent use.”
A further hearing was scheduled for 9 September 2024 and notice of the hearing was issued to the Respondent by registered post and by email. An automated response was received from the email address to indicate that it was no longer in use. The notice, including the details for joining the remote hearing, was sent by registered post. The Complainant attended the hearing on 9 September 2024; the Respondent did not attend, nor did it make any contact with the WRC subsequent to the hearing.
All hearings were conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/2020, which designate the Workplace Relations Commission as a body empowered to hold remote hearings. No technical issues were experienced during any of the hearings.
At the hearing on 9 September, I gave the Complainant the opportunity to outline his case to me and to present to me any evidence he wished to put forward. The Complainant had provided a submission in advance of the hearing which had been copied to the Respondent. The Respondent did not provide a submission at any time.
Preliminary Issue
At the hearing on 9 September 2024, I clarified with the Complainant if, in fact, he had submitted duplicate claims. He confirmed that he had submitted the same complaint twice as he was unclear if he needed to do so in the context that his claim was covering more than one year. However, as the evidence presented by him under each complaint number was identical and related to the totality of his claim I will address the totality of his claim under CA-00046312-001. In that context CA-00046312-002 is a duplicate claim.
Background:
The Complainant was a Contract Manager of the Respondent from 19 August 2019 until 31 August 2021. He complained that he did not receive his paid annual leave entitlement throughout his employment.
The Respondent was described in the complaint form as a provider of administrative and support services. The Respondent did not provide any response to the allegations.
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Summary of Complainant’s Case:
CA-00046312-001
In his complaint form, the Complainant outlined that he had been working with a named company the Respondent from 19 August 2019 to 31 August 2021 as a Contract Manager, employed through the Respondent workforce agency. He further outlined that he had signed an employment agreement with the Respondent agency prior to commencement of employment and he outlined that he had difficulty maintaining communication with the Respondent in relation to employment issues as all communication was through India-based operators. In that context, he resigned his position with the Respondent in July 2021, informing the respondent that his last day of work would be 31 August 2021.
The Complainant outlined that the Respondent had not paid him for annual leave unused by him in 2019,2020 and 2021 and that he had expected to receive payment with his final payment on 17 September 2021. He outlined that his employment agreement provided for 27 days annual leave, in addition to his entitlement to 9 public holidays. He also noted that the agreement provided that “if the employee leaves the company, a payment will be made in respect of the balance of their holiday entitlement. The Complainant advised that the calculation used to determine the days accrued was: weeks worked/52 x full annual leave entitlement less holidays already taken.
The Complainant outlined that he sent 2 emails to the respondent requesting that it pay him the monies outstanding for his unused annual leave and that he received a follow up phone call from MT, a UK HR Executive, this call was followed up by an email requesting the Complainant to sign a backdated Employment Agreement, thereby revising the annual leave terms. The Complainant stated that he declined to sign the revised agreement and was therefore seeking the assistance of the WRC.
In addition to his complaint form, the Complainant provided a comprehensive statement and supporting documentation. In his statement he submitted that on 18 July2019, an Employment Agreement was concluded between himself and the Respondent whereby the complainant was hired in the position of a Contract Manager contingent, for a client and he appended a copy of that employment agreement. He confirmed that he resigned from the Respondent employment, giving requisite notice, with his last day of employment on Aug 31, 2021. And he provided a copy of his resignation notice.
The Complainant submitted that in accordance with his employment agreement, he was entitled to a payment in respect of the balance of his holiday entitlement unused at the time of cessation of employment and he submitted that he had not used any of his holiday entitlement between the time he was hired and the time he resigned, owing to the inability to travel during the pandemic. The Complainant further submitted that in accordance with his employment agreement, the employee is eligible to annual leave of 27 days per year, inclusive of 9 days public holidays, prorated from the date of hire.
In his statement, the Complainant submitted that on September 30, 2021, he and the respondent signed Addendum No. 1 to the Employment Agreement, with retroactive effect from and including March 3rd, 2020, increasing his annual leave to 29 days per year and he appended a copy of the signed Addendum No. 1 and the respondent’s covering email. The Complainant also outlined that he had not received any holiday entitlement payment at the time of the complaint to WRC, but that on September 30, 2022, after signing Addendum 1, he was issued a payment equal to 13.45 days of holiday pay totalling €3701,50. And he appended a copy of the relevant payslip to his statement. The Complainant submitted that the days in respect to the balance of holiday entitlement were calculated incorrectly because the calculation did not take into account the provisions (the formula) of Section 5 of Exhibit A to the Employment Agreement, which was a more favourable arrangement to the employee in terms of annual leave pay than what is set out in the Organisation of Working Time Act, 1997.nhe referenced Section 20 (3) of the Organisation of Working Time Act, 1997, which states that “Nothing in this section shall prevent an employer and employee from entering into arrangements that are more favourable to the employee with regard to the times of, and the pay in respect of, his or her annual leave.”
He further submitted that under Section 5, paragraphs 2 and 3 of the Exhibit A (Wage Plan), on termination of employment, the entitlement to accrued holiday pay is based on the following formula, less any holiday already taken: Weeks Worked/52 x Full Annual Entitlement. Thus, the period from the date of commencement of employment on July 18, 2019, to March 2, 2020, the date when the holiday time was increased equals 32, 4 weeks.
From March 3rd, 2020, to August 31, 2021, equals to 78 weeks.
According to the formula in section 5 of the Exhibit A to Employment Agreement, the complainant was entitled to a payment for 60.32 days of holiday entitlement. However, the payment was only made for 13.45 days, leaving a total of 46.87 days unpaid.
In light of the foregoing, the Complainant asked that the Adjudication Officer find in his favour, and he sought payment of the unpaid balance of holiday entitlement in the amount of €12889.25.
At the hearing on 9 September 2024, the Complainant confirmed his account as set out in his statement and he verified that he had already received payment for 13.45 days annual leave and that he had benefitted from all public holiday entitlement throughout his employment.
CA-00046312-002
This is a duplicate of the claim outlined above at CA-00046312-001.
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Summary of Respondent’s Case:
The Respondent did not attend the hearing and did not provide any written submission, statement or other documentation.
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Findings and Conclusions:
CA-00046312-001
Although the Complainant was present on the day of the hearing, the Respondent did not attend. I have outlined under the heading ‘Procedure’ above the extensive efforts made by the WRC to communicate with the Respondent and the number of times the Respondent was advised by the Adjudication Officer the need to ensure that the WRC had an appropriate address that could be used for correspondence. Despite having advised the Respondent that the WRC would communicate using an email address through which the Respondent had made contact, the WRC received an automated email response from that email address to indicate it was no longer in use when it sought to notify the Respondent of the latest hearing arrangements. In those circumstances the WRC sent notice to the Respondents registered address, by registered post and by email to any email address available to the WRC.
Given that the Respondent was notified by both registered post and email, given that the Respondent was repeatedly advised of the need to ensure that the WRC had an up-to-date address which could be used for correspondence in relation to the claim, and given that the Respondent did not provide any alternative address I am satisfied that the Respondent was properly notified of the hearing but did not attend.
In the context of its’ non-attendance and in the absence of any evidence to the contrary I must conclude that this complaint is well founded.
CA-00046312-002
This is a duplicate of the claim outlined above at CA-00046312-001 and therefore there are no additional findings in this matter.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00046312-001
In accordance with the findings outlined above it is my decision that this complaint is well founded and further that the Respondent must pay the Complainant the amount of €12889.25 in respect of unused annual leave unused at the time of cessation of employment.
CA-00046312-002
This is a duplicate of the claim outlined above at CA-00046312-001 and therefore there are no additional findings or decisions in this matter.
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Dated: 23rd September 2024.
Workplace Relations Commission Adjudication Officer: Patricia Owens
Key Words:
Payment for annual leave |