ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00012022
Parties:
| Complainant | Respondent |
Anonymised Parties | A Sales Assistant | A Petrol Station |
Complaint:
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-00015925-001 | 21/11/2017 |
Date of Adjudication Hearing: 17/04/2018
Workplace Relations Commission Adjudication Officer: Andrew Heavey
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 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.
Background:
The complainant was employed by the respondent from 14th July 2017 until 4th November 2017. He worked 20 hours per week as a Sales Assistant and was paid €9.25 gross per hour. The complainant is seeking that he be paid his outstanding Annul Leave and Public Holiday entitlements. The parties made verbal submissions at the adjudication hearing. Further information was sought and was submitted to the Workplace Relations Commission on 23rd April 2018. |
Summary of Complainant’s Case:
The complainant stated that he was not provided with Annual Leave or Public Holidays while employed by the Respondent. Specifically, the complainant stated that he received no paid holidays between 14th July 2017 and 4th November 2017. The complainant also stated that he worked on two Public Holidays in that period; 6th August 2017 and 29th October 2017. The complainant stated that he was only paid his flat hourly rate of pay for the hours worked on each Public Holiday. The complainant quantified his financial loss at a total of €364.00 and is seeking payment of that amount. |
Summary of Respondent’s Case:
The respondent did not have the working time records at the adjudication but stated that the records would be submitted within ten days of the adjudication hearing. The respondent subsequently confirmed that the complainant worked approximately 297 hours for the duration of his employment and had worked six hours on each of the two bank holidays in question and was paid €9.25 per hour. |
Findings and Conclusions:
In relation to this complaint I find as follows: Annual Leave Section 19 of the Organisation of Working Time Act, 1997 states as follows: 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. 1(A) For the purposes of this section, a day that an employee was absent from work due to illness shall, if the employee provided to his or her employer a certificate of a registered medical practitioner in respect of that illness, be deemed to be a day on which the employee was — (a) at his or her place of work or at his or her employer’s disposal, and (b) carrying on or performing the activities or duties of his or her work. (2) A day which would be regarded as a day of annual leave shall, if the employee concerned is ill on that day and furnishes to his or her employer a certificate of a registered medical practitioner in respect of his or her illness, not be regarded, for the purposes of this Act, as a day of annual leave. (3) The annual leave of an employee who works 8 or more months in a leave year shall, subject to the provisions of any employment regulation order, registered employment agreement, collective agreement or any agreement between the employee and his or her employer, include an unbroken period of 2 weeks. (4) Notwithstanding subsection (2) or any other provision of this Act but without prejudice to the employee’s entitlements under subsection (1), the reference in subsection (3) to an unbroken period of 2 weeks includes a reference to such a period that includes one or more public holidays or days on which the employee concerned is ill. (5) An employee shall, for the purposes of subsection (1), be regarded as having worked on a day of annual leave the hours he or she would have worked on that day had it not been a day of annual leave. (6) References in this section to a working week shall be construed as references to the number of days that the employee concerned usually works in a week. The complainant was entitled to paid Annual Leave in accordance with Section 19(1)(b) of the Organisation of Working Time Act, 1997 calculated on the basis of his service with the respondent. On the basis of the evidence of the parties, I find that this complaint is well founded. Public Holiday Entitlement. Section 21 of the Organisation of Working Time Act, 1997 states as follows: 21.— (1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely— (a) a paid day off on that day, (b) a paid day off within a month of that day, (c) an additional day of annual leave, (d) an additional day’s pay: Provided that if the day on which the 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. (2) An employee may, not later than 21 days before the public holiday concerned, request his or her employer to make, as respects the employee, a determination under subsection (1) in relation to a particular public holiday and notify the employee of that determination at least 14 days before that holiday. (3) If an employer fails to comply with a request under subsection (2), he or she shall be deemed to have determined that the entitlement of the employee concerned under subsection (1) shall be to a paid day off on the public holiday concerned or, in a case to which the proviso to subsection (1) applies, to an additional day’s pay. (4) Subsection (1) shall not apply, as respects a particular public holiday, to an employee (not being an employee who is a whole-time employee) unless he or she has worked for the employer concerned at least 40 hours during the period of 5 weeks ending on the day before that public holiday. (5) Subsection (1) shall not apply, as respects a particular public holiday, to an employee who is, other than on the commencement of this section, absent from work immediately before that public holiday in any of the cases specified in the Third Schedule. (6) For the avoidance of doubt, the reference in the proviso to subsection (1) to a day on which the employee is entitled to a paid day off includes a reference to any day on which he or she is not required to work, the pay to which he or she is entitled in respect of a week or other period being regarded, for this purpose, as receivable by him or her in respect of the day or days in that period on which he or she is not required to work as well as the day or days in that period on which he or she is required to work. I find that the complainant worked on two Public Holidays for six hours each day. He was paid his normal hourly rate of pay on each occasion. Accordingly, I find this complaint is well founded. Having considered the submissions and evidence of both parties, I find that the complaint did not receive his entitlements in respect of Annual Leave and Public Holidays.
Public Holiday Entitlement: The complainant is entitled to an additional twelve hours pay at €9.25 per hour. Annual Leave entitlement: The complainant worked for three months and three weeks. I find that he is entitled to €61.66 in Holiday pay per month for each completed month. The complainant is entitled to a further €46.25 in respect of the final three-week period. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
The respondent is directed to pay the complainant as follows: Public Holiday Entitlement for 6th August 2017: six hours pay @€9.25 per hour = €55.50 Public Holiday Entitlement for 29th October 2017: six hours pay @€9.25 per hour = €55.50 Annual Leave entitlement from 14th July 2017-4th Nov 2017 = €231.23 The respondent is also directed to pay the complainant an additional €250 in compensation for the infringement of his rights under the legislation. All payments should be discharged to the complainant within 42 days of this decision. |
Dated: 1.8.18
Workplace Relations Commission Adjudication Officer: Andrew Heavey
Key Words:
Annual Leave entitlement, Public Holiday entitlement. |