DWT2619

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer's Decision No.: ADJ-00057073 (CA-00069441-002)

BACKGROUND:

The Employee Appealed the Adjudication Officer’s Decision to the Labour Court on 23 November 2025 in accordance with the Organisation of Working Time Act 1997.

A Labour Court Hearing took place on 30 June 2026

DECISION:

1. Appeal Details

This is an appeal by Ms Ramiro Costa (hereinafter the Complainant) against a Decision of an Adjudication Officer (ADJ-00057073/CA-00069441-002) made under the Organisation of Working Time Act 1997 (the Act) in a complaint against GoElite Education Limited (hereinafter the Respondent). The Adjudication Officer’s decision, dated 14 October 2025, found that the complaints were in part well founded and required the Respondent to pay the Complainant the sum of €672 in respect of unpaid public holidays together with €3,000 compensation for breaches of sections 15 and 21 of the Act.

This appeal is linked with appeal decision no. PWD2625, an appeal under the Payment of Wages Act, 1991 (the 1991 Act).

The Complainant sought to advance a partial appeal whereby she would retain the awards made by the Adjudication Officer under the Act but appeal the claim in respect of annual leave which was deemed not well founded at first instance. It was explained to the Complainant that if she commenced her appeal all matters under the Act would be reconsidered on a de novo basis and that it was not open to her to retain certain elements of the original decision under the Act and appeal others. Having informed the Court that she understood the position, the Complainant expressed her wish to continue with the appeal which the Court then advanced to hearing.

A hearing of the Court was held on 30 June 2026 in Dublin. The Complainant was not represented at the hearing but was accompanied by individuals, listed as witnesses but who did not give evidence in the case. The Respondent was represented by its Managing Director, Mr Seán McKenna. The Court received written submissions from both parties in advance of the hearing. Both the Complainant and Mr McKenna were sworn in at the commencement of the hearing, so submissions made orally were treated as evidence under oath which was subject to cross examination.

2. Summary of the Complainant’s Submission and Evidence

The Complainant commenced employment with the Respondent on 20 January 2022 as a Student Co-ordinator and resigned her employment on 1 November 2024 with her last date of employment being 1 December 2024. The Complainant’s annual salary was €27,000.

The Complainant’s claims for alleged breaches of the Act were in respect of excessive working hours, annual leave and public holidays.

The Complainant alleged that she worked excessive hours in breach of section 15 of the Act. The Complainant provided detailed spreadsheets of hours she said she worked in excess of her contracted hours in 2022, 2023 and part of 2024. She provided a spreadsheet summary for 2024 in which she claimed 618.5 hours overtime. The 2024 claim was separately advanced in other documents as 312 hours for January to June 2024 and 410.5 hours for August to December 2024 (a total of 722.5 hours). In a third document the Complainant maintained that she worked 300.5 hours overtime in 2023 and 755.5 hours in 2024 and otherwise asserted that 371.5 additional hours were worked in 2024. In the Complainant’s oral evidence, she maintained that all the additional hours worked were meticulously logged and all required to be worked by her because of the demands of her role. She said that examples of the work done on overtime included dealing with school visits and calls outside of hours, attendance at hospitals, social events, and time spent at airports.

The Complainant’s claim for alleged breaches of section 19 and 23, was in respect of untaken annual leave. The Complainant’s position was that the annual leave accrued during her employment was not fully and properly discharged on termination. The Complainant said that she took eight days’ annual leave in the calendar year 2022, nine days in 2023 and 22 days in 2024 so was owed for an outstanding balance of 16 days on termination of her employment. The Complainant said that she was not permitted to take leave other than the days she took and that even when one director encouraged her to take leave the other would not authorise it.

The Complainant alleged that she had not been paid for public holidays in breach of section 21 of the Act. In evidence the Complainant said she had worked on 17 March 2024 which was a public holiday and that she had not received additional payment for that day.

3. Summary of the Respondent’s Submission and Evidence

The Respondent submitted that the Complainant had been employed as a Student Coordinator from 20 January 2022 to 1 December 2024, with the role involving coordinating and supporting international students attending schools in the Dublin region. The students resided with host families which were the primary point of care and supervision in relation to the students’ day-to-day welfare and wellbeing. The Complainant worked remotely and was paid an annual salary of €27,000 for 10 months work (no work was required in June and July), for a 37.5 hour working week between the hours of 09:00 and 17:30 with flexibility required regarding days worked including Saturday and Sunday on occasion. The contract of employment did not provide for overtime and nor did it require unlimited availability outside of normal working hours. The Complainant’s contract provided for an entitlement to 19 days’ annual leave to be taken within the calendar year and where only in exceptional circumstances could untaken leave be carried over.

Mr McKenna did not dispute that the Complainant maintained detailed records of activities undertaken but he disputed that the work purportedly undertaken was necessary or required to be undertaken by the Complainant and that the Respondent had no way of verifying if the work was actually done. Mr McKenna said that many of the tasks identified as having been undertaken by the Complainant were outside the scope of her role and/or were the responsibility of the students’ host families, including inter alia communication with students/schools before commencement of the working day and attendance at non-emergency hospital stays by students. Mr McKenna said that the Respondent did not require or permit routine matters to be dealt with outside normal working hours. Mr McKenna accepted that there may be occasions of genuine emergency which would require the Complainant to work additional hours but that none of what was submitted by the Complainant constituted emergencies.

Mr McKenna said that after the Complainant claimed overtime in 2022, he had directed her not to be as available to students and families and to restrict her availability to standard working hours. Mr McKenna said that after this exchange the Complainant put a notification on her WhatsApp profile indicating her hours of work of 09:00 to 17:00 and that any contact after 17:00 was to be in respect of emergencies only (“Office 9 to 17, after 17 only emergencies thanks”). Mr McKenna said that he had no visibility that the Complainant was working overtime and had only received overtime claims at the end of the year. He said that he had not been notified of overtime allegedly worked for 2024 until after the Complainant’s resignation. Mr McKenna said that overtime working had not been approved or authorised by the Respondent. The Respondent acknowledged that there were times that overtime was required and gave an example of induction week where additional hours would be required. The Respondent’s submission was that such an example was unusual in terms of frequency but predictable in respect of timing and that only in emergencies would other hours of overtime be required.

In respect of annual leave Mr McKenna said that he did not keep records of annual leave but accepted the Complainant’s account of having taken eight days in 2022, nine days in 2023 and 22 days in 2024. Mr McKenna said that any days not taken in the applicable calendar year were lost as the Complainant was contractually obliged to take her annual leave during the calendar year. He denied that she was prevented from taking leave, saying that no requests had been refused. Mr McKenna said that the Complainant had taken more than her entitlement in 2024, and therefore she was not due any payment in respect of outstanding annual leave.

Mr McKenna submitted and gave evidence that the Respondent fully discharged its obligations to the Complainant pursuant to section 21 of the Act. In respect of public holidays in 2024, Mr McKenna’s evidence was that the Complainant had not worked on 1 April 2024 (Easter Monday), nor had she worked on the first Mondays in May, June and August, nor on the last Monday in October so was in receipt of a paid day off on each of those dates. The only public holiday which the Complainant worked in 2024 was 17 March in respect of which she had been given a paid day off on 15 March 2024 in lieu of working on the public holiday.

4. Relevant Legislation

Section 15 of the Act provides that:

“(1) An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period”) that does not exceed–

(a) four months,or

(b) six months-

(i) in the case of an employee employed in an activity referred to in paragraph 2, point 2.1 of Article 17 of the Council Directive, or

(ii) where due to any matter referred to in section 5, it would not be practicable (if a reference period not exceeding 4 months were to apply in relation to the employee) for the employer to comply with this subsection,

or

(c) such length of time as, in the case of an employee employed in an activity mentioned in subsection (5), is specified in a collective agreement referred to in that subsection.

The interpretation section of the Act (section 2(1)), sets out definitions of “employee”, “employer” and “leave year”, the relevant elements of which are set out below.

“Employee” is defined as meaning: “a person of any age who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer, …”

Employer, in relation to an employee, means: “the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment, …”.

“Leave year”means “a year beginning on any 1st day of April”.

Section 19(1) of the Act deals with annual leave and provides that an employee

“shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to-

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) One-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.”

Section 20(1) of the Act provides that:

“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-

(d) 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,

(e) to the employer having consulted with 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 is due to commence, and

(f) 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, or

(iii) where the employee-

(I) is due to illness, unable to take all or any part of his or her annual leave during that leave year or the period specified in subparagraph (ii), and

(II) has provided a certificate of a registered medical practitioner in respect of that illness to his or her employer,

within the period of 15 months after the end of that leave year.”

Entitlement in respect of public holidays is dealt with in section 21 of the Act which provides that:

“an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely-

(g) a paid day off on that day,

(h) a paid day off within a month of that day,

(i) an additional day of annual leave,

(j) an additional day’s pay:

provided that if the day on which a public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.”

Section 23 of the Act makes provision for compensation on cessation of employment and provides at subsection (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.

(b)  in this subsection-

“relevant period" means-

• (i) in relation to a cessation of employment of an employee to whom subparagraph (i) of paragraph (c) of subsection (1) of section 20 applies, the current leave year,

(ii)     in relation to a cessation of employment of an employee to whom subparagraph (ii) of the said paragraph (c) applies, that occurs during the first 6 months of the current leave year-

(I) the current leave year, and

(II) the leave year immediately preceding the current leave year,

(iii) in relation to a cessation of employment of an employee to whom subparagraph (iii) of the said paragraph (c) applies, that occurs during the first twelve months of the period of 15 months referred to in the said subparagraph (iii)-

(I) the current leave year, and

(II) the leave year immediately preceding the current leave year,

or

(iv) in relation to a cessation of employment of an employee to whom subparagraph (iii) of the said paragraph (c) applies, that occurs during the final 3 months of the period of 15 months referred to in the said subparagraph (iii)-

(I) the current leave year, and

(II) the two years immediately preceding the current leave year.”

5. Deliberations

It was not disputed that the Complainant was an employee, and the Respondent was her employer at the material time in accordance with the definitions set out in the Act.

The Complainant submitted her complaint to the WRC on 20 February 2025 so the cognisable period for consideration is from 21 August 2024 to 20 February 2025. There was no application made for an extension of time. The Complainant’s employment ended on 1 December 2024.

5.1         Claim for breach of Section 15 of the Act

In respect of her claim that she worked excessive hours, the Complainant submitted spreadsheets which she had created which she said reflected hours worked by her in the performance of her duties. Her position was that she was obliged to work these hours because of the demands placed on her by students and families. The spreadsheets, which included task specific activities, predominantly related to periods outside the cognisable period and reflected the Complainant’s tracking of tasks without any independent corroboration. The Complainant’s summary spreadsheet included a claim that she had worked 39 hours overtime during December 2024, notwithstanding her last date of employment was 1 December 2024.

As part of the documentation supporting her appeal, the Complainant identified that she worked 618.5 hours of overtime in 2024. The 2024 claim was separately advanced in other documents as 312 hours for January to June and 410.5 hours for August to December (a total of 722.5 hours). In a third document the Complainant maintained that she worked 755.5 hours of overtime in 2024 and otherwise asserted that 371.5 additional hours were worked in 2024. The Complainant’s oral evidence lacked specificity and was also inconsistent and contradictory and not of great assistance to the Court. The Complainant maintained that all the additional hours worked were meticulously logged and all required to be worked by her because of the demands of her role.

Following a claim for overtime by the Complainant in 2022, the Respondent’s evidence was that the Complainant had been spoken to and advised that she was not required to be, and nor was she to be, as available to students and families in the manner she had been. The Complainant did not dispute that this exchange took place and thereafter the Complainant’s WhatsApp profile (provided to the Court) contained a notification that her working hours were 09:00 to 17:00 and contact after 17:00 was for emergencies only. Very little of the listed activity by the Complainant (which did not in any event relate to the cognisable period) could have been considered emergency in nature and much of what she claimed was necessary was disputed by the Respondent as being necessary, and appeared to the Court, based on documents provided governing the nature of the service provided by the Respondent, to be more properly within the remit of the host family.

The Complainant did not contend that the Respondent knew in advance she was undertaking additional hours and neither was it suggested that the Respondent was aware that overtime was being worked by the Complainant at or around the time it was worked. In respect of the cognisable period the Complainant’s evidence was that she only notified the Respondent of the hours purportedly worked after she had given notice that she was leaving her employment.

For the cognisable period there were inconsistent and contradictory claims, between different documents and between the sworn oral evidence and documentary evidence relied upon. The Court, with some difficulty discerned that for the cognisable period the Complainant asserted that she worked 267.5 hours overtime. That figure appears to include the 39 hours of overtime claimed to have been worked in December which is simply not credible where the Complainant’s employment ended on 1 December 2024. Discounting the hours for December that still amounts to 228.5 hours which the Complainant maintains she worked in excess of her 37.5 hour work week. If that figure was accepted at face value it would seem to indicate that the Complainant had worked an additional 16 hours per week on average over the cognisable period.

It was not disputed between the parties that the Complainant’s contract of employment provided for 37.5 hours per week over five days which may include Saturday and Sunday and which required flexible working hours around a standard schedule. It was not disputed that it was not agreed between the Respondent and the Complainant that the Complainant would work additional hours.  Neither is it disputed that the first the Respondent knew of the Complainant’s claim that she worked any such overtime during the cognisable period was at the end of her employment.

It may be that the Complainant worked additional hours during the cognisable period, but those hours were not verified to the Court. While the Complainant provided the Court with significant detail of work she said she did outside of her contracted hours for 2022 and 2023 she provided no such detail in respect of the cognisable period. The documentation provided by the Complainant in respect of the hours she claimed to work was inherently contradictory and she did not provide any clarity in her oral evidence as to what hours were actually worked, and in respect of what duties, during that period. Of further difficulty for the Complainant is that she gave no evidence of her employer requiring her to work the additional hours. On the contrary, the Complainant’s evidence was that she unilaterally decided she needed to work the additional hours, notwithstanding that she had previously been spoken with about working within her scheduled hours and not being available on demand to students or families.

Section 15 of the Act provides that “an employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours”. The Complainant’s evidence was not that she was permitted to work in excess of 48 hours, nor was she required to work in excess of 48 hours. Her evidence was that she worked excessive hours, without reference to or without the knowledge of her employer at the material time. The Complainant worked remotely so was not located where her work was observed by the Respondent. The Court accepts the Respondent’s evidence that the Complainant had been expressly told not to work excessive hours and to confine her work to her normal working hours.

The Court is not satisfied that the Complainant has demonstrated that she worked excessive hours, in breach of section 15 of the Act, and even if she did work excessive hours beyond those permitted by the Act (which the Court does not find) the Court is satisfied that the employer did not permit the working of any such hours. In light of the above the Court finds that the Complainant has not made out her case that the Respondent breached section 15 of the Act.

5.2         Claim for breach of section 19 of the Act

The cognisable period from 21 August 2024 to 20 February 2025 meant that the period for consideration by the Court was in respect of the leave year from 1 April 2024 to 31 March 2025. The Complainant’s entitlement to annual leave in a standard leave year, pursuant to section 19(1)(a) of the Act, was for a total of 20 days notwithstanding she only worked for ten months each year. However, as the Complainant’s employment ended on 1 December 2024 her entitlement to annual leave for the 2024/5 leave year was 16 days, calculated on a pro rata basis.

On the Complainant’s account, in the 2024/5 leave year, she received paid annual leave on 24-26 April (inclusive); 27 September 2024, 18 and 21 October; and 18 to 22 November (inclusive) and 25-29 November (inclusive), a total of 16 days. The Respondent did not dispute the Complainant’s annual leave records.

The Complainant received paid annual leave of 16 days during the 2024/5 leave year. Her entitlement under the Act in respect of the 2024/5 leave year was 16 days. In circumstances where the Complainant was in receipt of her entitlement under the Act, her claim for a breach of section 19 of the Act cannot and does not succeed.

5.3         Claim for untaken annual leave on termination of employment

The Complainant made a further claim in respect of unpaid annual leave due to her on termination of her employment. The Respondent’s position was that the Complainant was not owed any payment for untaken annual leave where her contract of employment expressly provided that “your full entitlement must be taken during this period” (January to December) and where she had used more than her entitlement in 2024.

The Respondent considered that if the Complainant did not take her annual leave during the calendar year she was not entitled to be paid for untaken annual leave, on termination or otherwise. While a contract may provide for all annual leave to be taken within a leave year the Complainant is entitled to a statutory minimum number of annual leave days which should be granted by the Respondent or carried over to the limited extent provided by the Act. The Complainant did not dispute that she had received her entitlement to annual leave during 2024 (notwithstanding that she appeared to advance the section 19 claim above), but her position was that on termination of employment she was due payment for holidays that had been carried over from previous years. She maintained an entitlement to 16 days based on having taken 39 days out of a total entitlement to 55 days over the course of her employment.

The Complainant provided written details of annual leave which were not disputed by the Respondent. While the parties operated on a calendar leave year the details provided demonstrated that the Complainant took a total of 39 days leave during the course of her employment. When assigned on a leave year basis she took 1 day in the 2021/2 leave year, 11 days in the 2022/3 leave year, 11 days in the 2023/4 leave year, and 16 days in the 2024/5 leave year.

Section 23 of the Act provides that where an employee ceases to be employed and 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 be entitled to be paid a sum equal to what would be payable for that period of leave as compensation for the loss of that annual leave. There are different categories which determines what the relevant period is. There was a dispute between the parties regarding whether or not the Complainant had been able to take leave during each leave year. The categories of employee set out in section 20(1)(c) of the Act do not envisage a situation where the leave is not granted within the leave year but neither has the employee expressly consented to the leave being granted within the period of six months after the end of that leave year. The Respondent maintains that no application for annual leave was refused but does not dispute that the Complainant’s full entitlement to annual leave was not taken (or granted) during 2022 and 2023.

In the circumstances the Court is satisfied that, for the purpose of the application of section 23, section 20(1)(c)(ii) best fits the Complainant. This means that in calculating the Complainant's entitlement to compensation on cessation of employment for annual leave untaken, the Court may have regard to the current leave year and the leave year preceding the current leave year. This entitles the Complainant to compensation for the annual leave not taken during the 2023/4 and 2024/5 leave years.

The Complainant was entitled to 20 days annual leave for 2023/4 and 16 days for 2024/5, a total of 36 days. On the Complainant’s own account, not disputed by the Respondent, she took 11 days during the 2023/4 leave year and 16 days during the 2024/5 leave year. This leaves a balance of nine days for which the Complainant is entitled to be compensated.

It was agreed between the parties that a day constituted 7.5 hours. There was a disagreement on the evidence as to how the hourly rate might be calculated with the Respondent’s evidence, that the applicable hourly rate was €16.63 (based on 10 months work per year), preferred by the Court, not least because the Complainant was inconsistent in what she claimed was the applicable rate.

The Court concludes therefore the sum of €1,122.53 (being 9 days * 7.5 hours per day * €16.63 per hour) is due to the Complainant as compensation for untaken annual leave during the relevant period, pursuant to section 23(1)(a) of the Act.

5.4         Claim for breach of section 21 of the Act

The Complainant alleged that the Respondent breached section 21 of the Act in respect of the arrangements for public holidays during her employment. The only public holiday in the cognisable period was 28 October 2024. The Respondent’s evidence was that the Complainant had not worked on that day so was in receipt of a paid day off, in respect of that public holiday, in accordance with the provisions of section 21(1)(a) of the Act. The Complainant provided no evidence to contradict the Respondent’s evidence.

The Court is satisfied that there was no breach by the Respondent of section 21 of the Act in respect of the Complainant.

6. Decision

The decision of the Adjudication Officer, bearing adjudication reference number ADJ-00057073 and complaint reference number CA-00069441-002, found the Complainant’s claim for excessive working hours in breach of section 15 to be well founded and awarded compensation of €2,000 for the breach. In respect of the section 21 claim the Adjudication Officer found the claim to be well-founded and directed the Respondent to pay the Complainant €672 in respect of public holiday pay and compensation of €1,000 for the breach. The Adjudication Officer found the Complainant’s claims for breach of section 19 and/or 23 of the Act in respect of annual leave were not well-founded. 

In circumstances where the Court has found no breach of sections 15, 19 or 21 and where the Court has found a breach of section 23 the decision of the Adjudication Officer is varied by the Court to reflect these findings, setting aside the awards made by the Adjudication Officer and instead directing the Respondent to pay to the Complainant the sum of €1,122.53 less the appropriate statutory deductions as compensation for annual leave untaken at the end of her employment.

The Court so decides.

	Signed on behalf of the Labour Court
	Niamh McGowan
BB	______________________
24/09/2026	Deputy Chairman

NOTE

Enquiries concerning this Determination should be in writing and addressed to Mr Bernard Byrne, Court Secretary.