Complainant

Respondent

Parties

Mir Alam  Khan

Outsource Support Services

Complainant

Respondent

Anonymised Parties

{text}

{text}

Representatives

Anna Rosa Raso ESA Consultants

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-00060867-001

07/01/2024

The Complainant was working as a security operative with the Respondent from 17th November 2023.

The Complainant works 24 hours per week for the Respondent.

He applied for holidays by email which was rejected as he did not apply through the app. He applied twice for his annual leave through the app, the first time his application was rejected. He was then approved for one week’s annual leave, but never got paid.

The Complainant was getting married in Pakistan in October 2023. As holidays were not granted for the period, he had to take unpaid leave. When he returned from unpaid leave, he asked to be paid for his holidays before working any more shifts. As his 21 days holiday pay was still not paid, he lodged his complaint to the WRC.

The Complainant was provided with a statement of written terms and conditions upon commencing work which he signed on 14th December 2022.

The Respondent reminded the Complainant on 2nd August 2023 to apply for annual leave via the Smart task App.

The Complainant applied for leave by email on 28th September 2023, this was not approved as he did not apply through the App. The Respondent only found out after leave was taken in October, that the Complainant was getting married.

The Complainants annual leave in November 2023 was not approved in advance. Following his return, the Complainant refused to return to work in his email of 21st November 2023.

The Respondent does not dispute the entitlement of staff to take paid leave, but the Complainant did not follow established procedures and obtain authorisation before taking his annual leave.

I heard and considered the oral and written submissions of the parties.

The Complainant was employed as a security operative with the Respondent from 17th November 2023. He received a written statement of his terms and conditions in December 2022. This provided that the Complainant must apply for annual leave at least 4 weeks in advance. Annual leave is subject to agreement by the office, every effort will be made to ensure staff receive their annual leave dates but considering adequate manning of the company this may not be possible and staff may reapply for alternative dates.

S20 of the Organisation of Working Time Act 1997 :

(1) The times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements and subject—

(a) to the employer taking into account—

(i) the need for the employee to reconcile work and any family responsibilities,

(ii) the opportunities for rest and recreation available to the employee,

(b) to the employer having consulted the employee or the trade union (if any) of which he or she is a member, not later than 1 month before the day on which the annual leave or, as the case may be, the portion thereof concerned is due to commence, and

(c) to the leave being granted—

(i) within the leave year to which it relates,

(ii) with the consent of the employee, within the period of 6 months after the end of that leave year

…….

In Case C-684/16, Max-Planck-Gesellschaft v Shimizu ECLI:EU:C:2018:874, the Court of Justice said employers were obliged to ensure that workers were in a position to exercise their right to take annual leave. This was to be done by encouraging workers, formally if need be, to do so, while informing them, accurately and in good time so as to ensure that that leave is still capable of ensuring for them the rest and relaxation to which it is supposed to contribute, that, if they do not take it, it will be lost at the end of the reference period or authorised carry-over period. In that respect, the burden of proof was on the employer to show that all due diligence had been exercised.

No evidence has been provided by the Respondent of consultation with the Complainant regarding his three applications for annual leave, and facilitating the Complainant taking his leave within the leave year.

In the circumstances, I find the complaint is well founded. The Respondent has not discharged annual leave of 21 days owed to the Complainant and direct payment of 1,896.30 euro gross by the Respondent to the Complainant. In addition, I award compensation of 500 euro net to the Complainant for the breach and I direct payment by the Respondent.

The complaint is well founded. I direct payment of 1,896.30 euro gross in respect of 21 days annual leave owed by the Respondent to the Complainant. In addition, I award compensation of 500 euro to the Complainant for the breach and I direct payment by the Respondent.