ADJUDICATION OFFICER DECISION
A Haulage Company
Complaint/Dispute Reference No.
Date of Receipt
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
The Complainant started work for the Respondent on the 17th of April 2017. The employment ended on the 4th of October 2018.
A duplicate claim was filed under ADJ-00017735. Complaints
Summary of Complainant’s Case:
The Complainant’s case is that he did not receive his full entitlement to annual leave or pay for his period of employment in 2017 and 2018. He also stated he didn’t receive any payment for overtime which he did on a regular basis.
The complaint was lodged on the 20th of January 2019.
At the hearing he provided a spreadsheet for 2018 setting out what he was to be paid as per his payslips, his hours worked, breaks, holidays, days taken unpaid and overtime worked.
The Complainant disputed days the Respondent claimed were holidays. He explained that these days were taken in lieu for Saturdays worked.
Summary of Respondent’s Case:
The Respondents case is that the Complainant had taken is holiday entitlement while in employment. It provided a list of days in 2017 and 2018 that the Complainant had received holiday pay. It explained that this was 32 days for the 18 months that he was in employment with them.
Findings and Conclusions:
My powers under Section 41(6) of the Workplace Relations Act 2015 limits my investigation of a complaint to a period of 6 months prior to when the complaint was lodged with the WRC.
The period I can investigate under this claim is the 20th July 2018 to the 20th January 2019. The Complainant did not set out any reasons entitling him to an extension of the applicable period for reasonable cause.
The Complainants employment ended on the 4th October 2018.
The Organisation of Working Time Act transposes into Irish law Council Directive 93/104/EC of November 23, 1993 concerning certain aspects of the organisation of working time.
The Complainants claim regarding payment of wages for overtime is not covered by the provisions of this Act and I can make no finding in this regard.
Holiday pay is earned against time worked.
I reviewed the Complainants spreadsheet and the Respondents letter of the 8th October 2018 to the Complainant.
In order to determine what a worker’s working hours are, employers are required to keep records of working time in such form as prescribed by S.I. No. 473 of 2001: Organisation of Working Time (Records) (Prescribed Form and Exemptions) Regulations 2001.
Section 25(4)of the Organisation of Working Time Act 1997 provides, in effect, that where records are not kept in the prescribed form, the onus of proving, that the provisions of the Act have been complied with in respect of the Complainant, rests on the employer.
The records presented by the Respondent are not records of the type contemplated by the Statutory Regulations. They do not offer any conclusive evidence of hours worked.
It was open to the Respondent to provide decisive evidence of hours worked, by supplying the primary records necessary to ensure compliance with s.25. The Respondent did not do so. The obligation to maintain records is on the employer and if he fails to fulfil that obligation, he must bear the consequential burden of rebutting the evidence of the Complainant. In this case the Respondent has not rebutted that evidence.
In relation to the Complainant’s entitlement to annual leave, this is a statutory entitlement governed by section 19 of the Organisation of Working Time Act 1997. The six-month period referred to in the complaint under Section 27(4) of the Act encompasses the period 20th July 2018 to the 20th January 2019, ‘the cognisable period’.
The 6-month period referenced in the complaint encompasses the leave year 2018/2019, which began on 1 April 2018.
“19. Entitlement to annual leave
(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.
Having carefully considered all the submissions, oral and written, made to me during the hearing, I find from the period 1st April 2018 to the ending of his employment on the 4th October 2018 the Complainant agreed he took 8 days holidays.
Taking the records of the Complainant and calculating his hours worked (disregarding the overtime claimed) the Complainant was entitled to 10.4 days on the basis of 8% of the hours worked. 8% of the overtime worked would yield a further 1 day’s holiday.
The obligation to provide annual leave is imposed for health and safety reasons and the right to leave has been characterised as a fundamental social right in European Law (see comments of Advocate General Tizzano in R v Secretary of State for Trade and Industry, ex parte Broadcasting, Entertainment Cinematography and Theatre Union  IRLR 559.
In Von Colson & Kamann v Land Nordrhein – Westfalen  ECR 1891the ECJ, as it then was, made it clear that where such a right is infringed, the judicial redress provided should not only compensate for economic loss sustained but must provide a real deterrent against future infractions.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
I make a further award of €1,000 by way of compensation for the breach of section 19. This is not taxable as it is a compensation payment.
An associated case was filed under ADJ-00017735. Complaints
Dated: December 2nd 2019
Workplace Relations Commission Adjudication Officer:
Holiday pay. Wages. Cognisable period. Von Colson