Complainant

Respondent

Parties

Colm  Donnelly

Brendan Harte

Complainant

Respondent

Anonymised Parties

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Representatives

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-00066260-001

25/09/2024

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

CA-00066260-002

25/09/2024

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 15 of the  European Communities (Organisation of Working Time) (Mobile Staff in Civil Aviation) Regulations 2006 - S.I. No. 507 of 2006

CA-00066260-003

16/12/2024

The Complainant commenced employment as a Driver with the Respondent on 6 February 2017 and was paid €12 per hour. His employment ended on 26 February 2024.

He stated that he was underpaid by the Respondent in respect of wages and holiday pay over the course of his employment.

The Complainant stated that there was a shortfall in the amount of €13,019 in respect of annual leave that was owed to him by the Respondent.

He also stated that he was owed wages in the amount of €825.86.

The Respondent did not attend the hearing to give evidence.

CA-00066260-001:

This complaint was referred to the WRC on 25 September 2024 and concerns unpaid annual leave which the Complainant stated amounted to €13,019 over a seven-year period from 6 February 2017 to 26 February 2024.

Preliminary Matter:

Section 41(6) of the Workplace Relations Act, 2015 provides as follows in respect of time limits: 

“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

Section 41(8) of the Workplace Relations Act, 2015 provides that if a complaint is not submitted within six months of the alleged contravention, an extension may be granted by an Adjudication Officer up to a maximum time limit of twelve months where, in the opinion of the Adjudication Officer, a Complainant has demonstrated reasonable cause for the delay in accordance with the provisions:

“An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the period referred to in subsection (6) or (7) (but not later than six months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.” 

It is a matter for a Complainant to establish that there is reasonable cause for the delay.

The Complainant in this case stated that he had been repeatedly promised by the Respondent that he would pay him the shortfall in holiday pay that was owed to him and that this was the reason he had delayed in referring the complaint to the WRC.

Considering this undisputed evidence, I find that it was reasonable for the Complainant not to have presented the complaint within the six-month period following the final alleged contravention of the Act on 26 February 2024 and accordingly decide that I have jurisdiction to consider any alleged contraventions of the Act in the period from 26 September 2023 to 25 September 2024.

This brings the last contravention of the Act namely the failure by the Respondent to pay the Complainant his accrued holiday entitlement from the beginning of the statutory leave year to the day that day he left his employment, namely 26 February 2024 into time. Not alone is the Complainant seeking payment however of the accrued holiday entitlement that he stated was unpaid to him for the holiday year 1 April 2023 to 26 February 2024, the day he ended his employment, he is also seeking his accrued holiday entitlements for the entire period from February 2017 because he stated that he was not afforded the opportunity to take the leave.

I must therefore examine if the Complainant should now be paid for his untaken annual leave given his evidence that he was not afforded the opportunity to take most of the annual leave that he was entitled to during his employment. The answer to this question lies in a line of authority from the Court of Justice of the European Union (CJEU) and subsequent Irish decisions that have applied that jurisprudence.

In Max-Planck-Gesellschaft zur Förderung der Wissenschaften eV v. Shimizu (C-684/16), the CJEU held that Article 7 of the Working Time Directive (2003/88/EC) requires a national court to ensure that, where an employer cannot demonstrate that it exercised all due diligence in enabling a worker to actually take paid annual leave, the worker retains the right on termination to a payment in lieu of leave not taken. In King v. Sash Window Workshop Ltd (C-214/16), the Court went further, finding that any national rule which prevents an employee from being paid for leave carried over across multiple reference periods is contrary to EU law where the employer failed to remunerate or facilitate that leave. Most recently, in BU v. Comune di Copertino (C-218/22), the CJEU reaffirmed that national legislation, including provisions imposing time limits, cannot prevent payment for untaken annual leave at the end of employment unless the employee was given a real and encouraged opportunity to take that leave and was clearly advised that a failure to do so would result in its loss.

The burden of proof therefore rests squarely on the employer. It is not enough to merely permit leave in theory; the employer must be able to show that it took active steps to ensure the employee was encouraged to take it, and that the employee was warned in good time that untaken leave would lapse. Where this cannot be shown, the right to annual leave and the corresponding payment in lieu cannot be extinguished.

This principle was clearly articulated in the WRC decision ADJ-19188 (A Facilities Coordinator v. A Bakery), which summarised the CJEU jurisprudence as establishing that, save for cases involving long-term sickness absence, the onus is on the employer to ensure that the employee can actually avail of annual leave. The Adjudication Officer in that case emphasised that the right to annual leave stems from both the Working Time Directive and the Charter of Fundamental Rights, and that it is a fundamental social right. Where the employer has not met the burden of due diligence, EU law precludes any national provision that seeks to limit the accrual of annual leave or payment in lieu, and where leave is to lapse, the employer must communicate that clearly and in good time. The Sash Windows case dealt with leave spanning thirteen years, and the CJEU did not restrict the period of the claim despite being invited to do so.

Applying these principles to the present matter, the Complainant’s uncontested evidence was that he only took a small number of days’ leave per year during the seven-year period in question, which fell far short of his statutory entitlement of four weeks per annum. No evidence was provided to show that the Respondent ensured that the Complainant took his annual leave, or that the Complainant was ever warned that failure to take leave would result in its loss.

Considering all of the foregoing, I am satisfied that the complaint is well founded and that the Complainant is entitled to payment in lieu of untaken annual leave for the period from 6 February 2017 to 26 February 2024.

CA-00066260-002:

Preliminary Matter

This complaint was referred to the WRC on 25 September 2024.

Section 41(6) of the Workplace Relations Act, 2015 provides as follows in respect of time limits: 

“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

Section 41(8) of the Workplace Relations Act, 2015 provides that if a complaint is not submitted within six months of the alleged contravention, an extension may be granted by an Adjudication Officer up to a maximum time limit of twelve months where, in the opinion of the Adjudication Officer, the Complainant has demonstrated reasonable cause for the delay in accordance with the provisions:

“An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the period referred to in subsection (6) or (7) (but not later than six months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.” 

It is a matter for the Complainant to establish that there is reasonable cause for the delay.

The Complainant in this case stated that although he was not paid any wages for the six week period  ending 26 February 2024, he had since been paid €3,000 of what he was owed by the Respondent and was repeatedly promised by the Respondent that he would receive the remainder of these outstanding  wages, namely €825.86, and that this was the reason he had delayed in referring the complaint to the WRC.

Considering the foregoing, I find that it was reasonable for the Complainant not to have presented the complaint within the six-month period following the initial alleged contravention of the Act on 26 February 2024 and accordingly decide that I have jurisdiction to consider any alleged contraventions of the Act in the period from 26 September 2023 to 25 September 2024.

Substantive Matter:

Section 1 of the Payment of Wages Act 1991 (“the Act”) defines wages as:

“any sums payable to the employee by the employer in connection with his employment, including—

(a)   any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise,”

In Marek Balans -v- Tesco Ireland Limited [2020] IEHC 55 approving Dunnes Stores (Cornels court) Limited -v- Lacey [2007] 1 1.R. 478, it was stated that a decision-maker must firstly determine what wages are properly payable under the employment contract before determining whether there has been a deduction under the Payment of Wages Act 1991.  While each case will turn on its own particular facts, it is necessary to ascertain, in the instant case, (1) whether the pay constituted a term of the Complainant’s contract and (2) if has there been a contravention of Section 5 of t

As it was not disputed that the Complainant did not receive wages in the amount of €825.86 that he stated were due to be paid to him in February 2024, I find that this complaint is well founded.

CA-00066260-001:

This complaint is well founded for the reasons set out above.

In the first instance, I accept the Complainant’s evidence that he was not paid €13,019 in respect of outstanding annual leave for the period from 1 January 2017 to 26 February 2024.

Section 27(c) affords me the jurisdiction to 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.

Considering the foregoing, the Respondent is directed to pay the Complainant the sum of €15,000 in compensation, which is inclusive of the outstanding annual leave entitlement payments as outlined above. For the avoidance of doubt, this amount is not in the nature of remuneration and should not be treated as such for the purposes of tax or other deductions.

CA-00066260-002:

I find that this complaint is well founded for the reasons set out above and direct that the Respondent make a payment of €825.86 to the Complainant in respect of this complaint.

CA-00066260-003:

As the Complainant was not a mobile worker as set out in the Regulations, this complaint was withdrawn.