Complainant

Respondent

Parties

Ryszard  Kulbaka

Drumloman Pork Ltd

Representatives

Monika Lipska, a relation of the Complainant

Eamon Briody, a director of the Respondent

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-00062527-002

31/03/2024

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

CA-00062527-003

31/03/2024

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

CA-00062527-004

31/03/2024

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

CA-00062527-005

31/03/2024

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

CA-00062527-006

31/03/2024

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

CA-00062527-007

31/03/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00062527-008

31/03/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00062527-009

31/03/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00062527-010

31/03/2024

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

CA-00062527-011

31/03/2024

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

CA-00062527-012

31/03/2024

These are employment rights complaints made by the Complainant, a former employee of the Respondent.

Due to duplication of complaints on the Complaint form, on the first hearing date, 10.9.2024, the Complainant confirmed that only four complaints of the eleven issued would proceed. These being:

CA - 00062527 002  : OWT [Annual Leave]

CA - 00062527 003  : OWT [Public Holidays]

CA - 00062527 008  : Terms of Employment Information [No contract]

CA - 00062527 012  : Payment of Wages Act [shortfall in wages]

All other complaints [CA - 00062527 004; 005; 006; 007; 009; 010 and 011] were withdrawn

Under affirmation, and assisted by a Polish interpreter (who gave an interpreter affirmation) the Complainant gave the following evidence:

1.      The Complainant worked at the Respondent’s pig farm in Cavan.

2.      His job was to feed the pigs and piglets and to disinfect pig holding pens.

3.      He worked for the Respondent from December 2017 until November 2023 when he found another job.

4.      His pay was the statutory minimum wage.

5.      He did not receive a written contract or terms of employment in writing for the six years that he worked for the Respondent [CA00062527-008]

6.      He only received a small portion of his annual leave entitlement in each of the 6 years that he was working for the Respondent [CA00062527-002].

-        In 2017 he was entitled to 18.5 hours of annual leave at rate of €9.25 per hour. He received zero days of annual leave that year.  He seeks the shortfall amount of €171.68.

-        In 2018 he was entitled to 4 weeks annual leave. He received only 4 days of paid annual leave that year (€276.35.) He seeksthe shortfall amount of €1658.09

-        In 2019 he was entitled to 4 weeks annual leave. He received only 3 days of paid annual leave that year and was paid €223.86. He seeksthe shortfall amount of €1865.50

-        In 2020 he was entitled to 4 weeks annual leave. He received only 2 days of paid annual leave that year and was paid €154.42. He seeksthe shortfall amount of €2007.42

-        In 2021 he was entitled to 4 weeks annual leave.  He received only 5 days of paid annual leave that year and was paid €395.56. He seeksthe shortfall amount of €1819.60

-        In 2022 he was entitled to 4 weeks annual leave. He received only 3 days of paid annual leave that year and was paid €240.54. He seeksthe shortfall amount of €2004.46

-        In 2023 he was entitled to 4 weeks annual leave. He received only 1 day of paid annual leave that year. He seeksthe shortfall amount of €1993.90

-        In total the Complainant submits that the annual leave that he was entitled to but did not receive amounted to a total amount of €11520.65

7.      The Complainant denies that his employer advised him that if he did not take the leave within each leave year that the entitlement would be lost. Also, as no contract was provided to him, he was never on notice of any provision whereby his annual leave entitlement needed to be taken within a set period of time or it would be lost. There is nothing else in writing to show that this advice was given.

8.      In respect of unpaid public holidays in the period of six months prior to the issue of his WRC complaint the Complainant claims that was entitled to be paid €90.40 for the October bank holiday in 2023 that he worked but was not paid. [CA00062527-003]

9.      In the six months prior to the issue of his WRC complaint the Complainant suffered an unlawful deduction of his wages, namely a shortfall each week of €5.23, for weekend hours that he worked but which were not accurately paid or reflected in his payslips. The total amount of unlawful wage deduction for this period was €36.61. [CA00062527-012]

Under affirmation the director of the Respondent, Eamon Briody, gave the following evidence:

1.      He conceded two complaints CA00062527-003 in respect of unpaid public holidays [€90.40] and CA 00062527-012in respect of unauthorised deductions of wages [€36.61]

2.      In respect of a written contract, [CA00062527-008] Mr Briody denied not giving the Complainant a written contract. He said that he gave the Complainant a written contract within a few weeks of him starting in 2017. He produced a document during the remote Adjudication hearing and showed it to the Adjudicator via his computer screen. He accepted that he had not sent a copy of the contract to the WRC. When asked why he had not, he said that he did not think that he had to. When asked by the Complainant’s representative why on the contract document (that he says was provided to the Complainant, which is denied) was the Complainant’s name correctly spelled and yet for the 6 years of the Complainant’s employment Mr. Briody never spelled the Complainant’s name correctly, not on payslips or on any document. It was put to him that no contract had been given to the Complainant at any point during the course of his employment and that the document (that he chose not to send to the WRC) was created for the purpose of the hearing, Mr. Briody denied this and said that any inaccuracies on his pay slips were mistakes by his administration team not by him.

3.      In respect of the calculations of untaken annual leave over 6 years [CA - 00062527 002] the Respondent did not deny that there was a manifest shortfall for each year of the Complainant 6 years of employment. He does not dispute the number of days that the Complainant says that he was given paid leave and those that he was not. However he said that he advised the Complainant on a regular basis - that if he did not take annual leave that he would lose it - and yet despite these warnings, the Complainant kept working. The Respondent did not say that there was any set period within which the Complainant needed to take leave or he would lose it.

4.      When asked by the Adjudicator why the Respondent thought that Complainant would have worked when for 4 weeks each year he could have not worked and still been paid, Mr. Briody said that he did not know why.

5.      Mr. Briody confirmed that he just wanted all the complaints done and dealt with because it was causing him great stress to deal with this.

6.      He considered that he treated the Complainant very fairly, as he did all his employees. He contended that the historic annual leave claims were largely out of time and while he accepted that in respect of the 2023 leave year that he withheld holiday pay from him, this was because the Complainant left the employment without any notice.  He believed that the Complainant owed him at least 4 weeks notice, which is an “accepted standard of notice” that must be given by an employee leaving a job.

I will deal with each complaint in turn

CA - 00062527 002 

This is a complaint for unpaid annual leave over a 6 year period. The issue of the time limit to bring this complaint first needs to be dealt with. The claim goes back to untaken, unpaid annual leave from December 2017 until the end of the Complainant’s employment in November 2023 (the WRC complaint issuing on 31 March 2024)

The issue is where the employment is terminated, does untaken annual leave accrue as an allowance at the termination date if the Complainant can show that he was not given an opportunity to take leave during his employment? The answer to this lies in a consideration of a number of CJEU decisions and WRC decisions that have followed.

In the case of Max-Planck-Gestelleschaft zur Forderung der Wissenschaften cV v. Shimzu C-684/16.

In the context of considering limitations applied by national legislation on the right of an employee to take leave the CJEU held that Article 7 of the Working Time Directive (2003/88/EC) requires that a national court hearing a complaint “must ensure that should the employer not be able to show that it has exercised all due diligence in enabling the worker actually to take the paid annual leave or correspondingly and in the event of the termination of the employment relationship, to the allowance in lieu of leave not taken, which must be paid, in that case, directly by the employer concerned.”

In King v. Sash Windows Workshop Ltd C-214/16 the CJEU held that any national provision which prevented an employee from being paid at the end of their employment for leave carried over several consecutive reference periods was precluded where his employer refused to renumerate that leave.

More recently in BU v. Comune di Copertino C-218/22 by way of a preliminary ruling the CJEU (First Chamber) confirmed that there can be no national legislation (including a time limit provision) which prohibits the payment of untaken annual leave at the end of an employee’s employment unless the employee had a real opportunity to take the leave and that he was encouraged by his Employer to do so and was advised that a failure to do so would result in it being lost.

Therefore the CJEU authorities are clear; the onus is on the Employer to prove that the employee is permitted to avail of leave, the employer must exercise due diligence to ensure that the leave is taken and if the Employer is relying on “use it or lose it” warnings, there must be clear evidence of this.

As the Adjudicator in the WRC decision of Adj 19188 [A Facilities Coordinator v. A Bakery] noted with respect to the CJEU jurisprudence on this issue:

“The thread of the CJEU jurisprudence is that in cases other than long sickness absence, the onus is on the employer to ensure that the employee can actually avail of annual leave. The employer must exercise all due diligence in ensuring that leave is taken. The jurisprudence centres on the employee being the weaker party in the employment relationship. The right to annual leave draws from both the (Working Time) Directive and the Charter of Fundamental Rights. It is a fundamental social right. Where the employer has not met the burden of due diligence, EU precludes a national provision that seeks to limit the accrual of annual leave or the payment of the allowance in lieu. Where carried over annual leave is to lapse, this situation must be accurately conveyed to the employee and in a timely fashion. Sash Windows addressed leave going back 13 years and the CJEU did not limit the purview of the claim despite being invited to do so.”

So where, does this leave the argument that because the claim was not brought within 6 months from the date of the breach, that the claim annual leave is time barred?

The CJEU’s answer to that question is clear. Where the employment ends and annual leave has not been taken, unless there is evidence to show that the Employer exercised due diligence to ensure that the Employee was encouraged to take the leave and evidence that the Employee was clearly advised that he would lose the leave unless he took it within a time period,  then the fundamental social right to annual leave is not lost and the employee is entitled to be paid for the losses arising from the untaken leave, or an allowance reflecting that loss.

Application of the above authorities to this case

The Respondent accepts the dates as provided by the Complainant in terms of the annual leave days that that were taken over the six years and that were not taken. This amounts to between 1 day leave and 5 days leave per year. The Respondent does not seek to deny that this fell significantly short of what the Complainant’s annual leave entitlement was (4 weeks each year.)

I am satisfied that the Respondent’s evidence did not show either that he exercised due diligence to ensure that the Complainant took annual leave for each year he worked nor did he prove that the Complainant was warned by him that his failure to take leave would result in him losing it.

The Respondent seemed not fully aware as how fundamental annual leave is as a social right. He did not appear to be concerned that he had an employee who kept working and did not avail of his right to paid time off for the entire 6 years that he worked for him. 

I find it noteworthy that during the hearing the Respondent was critical of the Complainant not giving him 4 weeks of notice before he left the employment (which is not required by law) but did not appear to be concerned that his business availed of a worker who took only a few days each year of his annual leave entitlement for each of the six years that he was employed.

I am satisfied that this complaint is well founded and I award the Complainant, €11520.65 to reflect the losses that he incurred as a result of unpaid annual leave from the start of his employment in December 2017 until his employment ended in November 2023.

CA00062527-003

This is a complaint of unpaid public holidays [€90.40] which is conceded by the Respondent. On foot of this concession, I find this complaint to be well founded and I award the Complainant the sum of €90.40

CA00062527-008

This is a complaint that for the duration of his employment the Complainant was not issued with a written contract or terms and conditions of employment in writing.

I am satisfied that the Respondent had the opportunity to provide the WRC (and me as Adjudicator) with a copy of the contract that he says was issued to the Complainant in 2017 in order that same could be inspected and that he chose not to. This is despite being advised by me on the first hearing day, a week before the second, that he was obliged to provide to the WRC any documentary evidence upon which he wished to rely in advance of the second hearing date. Neither any corroborative evidence given to support his assertion that a contract issued in 2017.  As I was not allowed to consider the document and no good explanation for this non provision was provided to me during the Adjudication, I am satisfied that the Respondent has not proven that a contract was furnished to the Complainant either in 2017 or at all. I found the Complainant’s evidence to be compelling in this respect and I am satisfied that the Complainant has proven on the balance of probabilities that the he was not provided with a contract during his employment with the Respondent.  I am satisfied that this complaint is well founded. I award the Complainant four weeks gross salary, namely: €2245.00

CA 00062527-012

This is a complaintin respect of unauthorised deductions of wages[€36.61] which is conceded by the Respondent. On foot of this concession, I find this complaint to be well founded and I award the Complainant the sum of €36.61

CA - 00062527 002 

This complaint is well founded. I award the Complainant €11520.65

CA00062527-003

This complaint is well founded. I award the Complainant €90.40

CA00062527-008

This complaint is well founded. I award the Complainant €2245.00

CA 00062527-012

This complaint is well founded. I award the Complainant €36.61