ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00003908
Complaint for Resolution:
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
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
Date of Adjudication Hearing: 27/09/2016
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
In accordance with Section 41(4) of the Workplace Relations Act, 2015, and Section 27 of the Organisation of Working Time Act 1997 and Section 13 of the Industrial Relations Act 1969, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Attendance at Hearing:
A Secondary School
Complainant’s Submission and Presentation:
The complainant is employed as a Caretaker by the school since 2004. He works 24 hours average per week on a permanent basis. He received no holiday pay during all this time from his employer.
He has no written contract. His work involves maintaining and supervising the school’s Astroturf pitch. His remuneration is €12.48 per hour. Siptu has further issues with the respondent in respect of the reduction of the complainant’s hourly rate. Following a meeting, management agreed to implement the complainant’s paid annual leave entitlement under the Organisation of Working Time Act 1997 for this current annual leave year (2016). However, this has not been fully agreed or signed off. In addition there was no outcome in respect of compensation for retrospective leave. It is submitted that the respondent acted in breach of the Act by denying the complainant’s right and entitlement to paid annual leave under the Organisation of Working Time Act 1997. In particular, the Act provides in section 20 of the Act that
“ (2) the pay in respect of an employee’s annual leave shall-
Be paid to the employee in advance of his or her taking the leave,
Be at the normal weekly rate, or as the case may be, at the rate which is proportionate to the normal weekly rate, and
In a case in which board and lodging or, as the case may be, both board and lodging, constitute part of the employee’s remuneration, include compensation, calculated at the prescribed rate, for any such board or lodging as will not be received by the employee whilst on annual leave.”
Relevant case law includes the European Court of Justice ruling in Messrs Robinson-Steele, Clarke, J.C. Caulfield, C.F. Caulfield and Barnes, (C-131/04 and C-257/04). The Court stated that the entitlement to paid annual leave is an important principle of Community social law and “holiday pay is intended to enable the worker actually to take the leave to which they are entitled”. It is submitted that the minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated.
Under complaint reference number CA-00005660-001, the complainant seeks confirmation that the complainant is entitled to time off and payment at the time of his holidays as is set out in the Organisation of Working Time Act 1997, and that that this entitlement is implemented for the 2016 annual leave year and going forward, and under the complaint/dispute reference number CA-00005660-002, that the complainant is paid compensation at the rate of two weeks per year from 2004 to 2015 amounting to €6,870.
Respondent’s Submission and Presentation:
The respondent stated that the astroturf pitch which the complainant was engaged to work on has had a history of difficult financial circumstances, with income down 37%. It is argued that it has always been the practice to pay, for example part-time teachers for annual leave as part of wages. It is argued that 8% of pay has been added to the complainant’s pay to allow for annual leave. The respondent however, is now committed to paying the complainant €11.58 per hour and providing the complainant with the requisite annual leave period. A written statement of terms and conditions of employment is being drafted.
The complaint under this reference is for the application of the Act in respect to paid annual leave entitlements. Section 19 of the Act provides:
“19.—(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), 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.”
It is well established that payment in lieu of annual leave cannot be made except on cessation of employment. The Labour Court has affirmed that annual leave is for rest and recreation purposes and the value of it cannot be inbuilt to wages.
As provided for in Section 27 (3) (a) of the Act I find the complaint to be well founded.
As provided for in Section 27 (3) (b) of the Act I require the respondent to comply with Sections 19 and 20 of the Act. I further require, as provided for in Section 27 (3) (c) of the Act, that the respondent pay to the complainant compensation in the sum of €6,000 which is just and equitable in the circumstances.
As the issue of compensation has been dealt with in CA-00005660-001, I am making no further award under this complaint/dispute.
Dated: 7th December 2016