Complainant

Respondent

Parties

Sharon  Roche Morrissey

Independent Colleges Dublin

Representatives

SIPTU

 Flynn O'Driscoll

Act

Complaint 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-00045020-001

05/07/2021

The complainant Ms Sharon Roche Morrissey complains that has not been paid annual leave since the commencement of her Employment in September 2019, in breach of the Organisation of Working Time Act, 1997

The complainant commenced employment in September 2019 with the respondent, Independent Colleges Dublin (ICD) as a lecturer and is contracted to work 12.5-hour week.

Her hours vary. She is paid €80 per hour but 8% is deducted is deducted from her wages and set aside for the payment of annual leave.

Up to April 2021 the respondent did not pay public holidays but when highlighted, it has begun to do so. We say that part 3, sections 19 1 (c), 19 2 (b) and 19 (3) have been breached. Payment for annual leave remains outstanding as the complainant has funded her own leave. We are seeking the correct payment to be reimbursed and compensation paid for the breach.

On starting work, the complainant was given a contract of employment and the Employee Handbook. In these documents, various terms and conditions are set out. For the purposes of this case, I will specifically refer to what is stated regarding the rate of pay and annual leave.

Page 18 section 6.13 of the Employee handbook, sets out the policy and the conditions of applying for annual leave. The "entitlement" in this document refers the reader back to their own terms and conditions. Section 6 of the T & C refers the reader to schedule 1.

So, schedule 1 for the complainant states that:

Annual leave entitlement will be 8% pro rata based on the number of hours worked in the leave year, subject to a maximum of four working weeks. Holiday pay will be based on your current rate of renumeration.

And, point 7 states; holidays are paid at normal basic pay.

However, the Respondents do not follow these policies, as, in effect, the complainant pays for her own leave. At her employment interview the complainant was told her hourly rate of pay would be €80 per hour.

On or around May 2020, the Complainant noticed she was not remunerated at this rate, instead €74.07 was stated on the payslips (submitted in evidence). The complainant queried this with ICD and received a response as follows;

If you mean the gross doesn't match your fee note, this is because 8% of your hourly rate is withheld each month, it accumulates and paid back to you in July and January each calendar year as annual leave pay while there are no classes on. Holiday pay accumulated from January to June is paid out in July and the holiday pay accumulated from July to December is paid outin January. This is the same for all lecturers at independent college Dublin. Your normal hourly rate is €80 and 8% of this is withheld so your monthly hourly rate works out as 74.07.

I am surprised this wasn't mentioned to you when you first started with us! We actually paid out some annual leave pay to you in January already.

The complainant sought clarification as part of the grievance procedure. The respondents did not consider that this was incorrect or in breach of the Act. In addition, The T & C document section 6.13 point 6 states that;

You may not normally take more than two working weeks consecutively, although special requests will be considered.

This also a breach of section 9 (3} of the Act.

At a grievance hearing in April 2021 the complainant queried this deduction saying that this represented non-payment of a statutory entitlement.  Despite attempts to rectify, no progress to date has been made. We consider, this a fundamental breach of the Act.

As stated, no annual leave payment is received from the Respondents, the complainant essentially finds this herself leave by way of 8% being "withheld" from her normal rate of pay. Rolled-up holiday pay/consolidated has been outlawed since the introduction of the EU directive and is clearly banned.

We are seeking reimbursement from commencement of employment to date. The complainant has worked approximately 542.5 hours x 8% = 43.4 hours x €80 = €3,472 to date.

There are variables as thecomplainant also works "homework" hours, exam invigilation and CDPhours. Some of these functions attract a different rate of pay and have not been included intheabovecalculation.

A number of authorities were relied on including O'Donnell v Wolf Security WTC/00159 [2001] 12 E.L.R. 136,Kvaerner Cementation (Ireland} Limited v Martin Treacy DWT017 and ADJ-00032324.

We respectfully request that you find the complaint to be well founded, require the respondent to fully comply with the Act, award the correct annual leave payments and retrospection and award the maximum compensation allowable under this Act as a deterrent to the respondent.

The complainant commenced employment with Independent Colleges Dublin on September 10th, 2019 on a rate of pay of €74.04 per lecturing hour, not €80.00 per hour as claimed by her. She was informed that 8% of the €74.07 was being calculated and paid by way of holiday pay.

The complainant’s contract of employment which was sent to her in September 2019 clearly shows at schedule 1 that the rate of pay was €74.07 per lecturing hour.

The complainant ’s contract clearly showing the rate of pay applicable in the schedule.

The payslips which the complainant   received from Independent Colleges Dublin from the outset very clearly show that the rate of pay she was receiving was calculated at €74.07 per lecturing hour. It is clearly itemised and calculated each month.

The complainant’s holiday pay of 8% on top of the €74.07 per hour combined amount to €80.00 per lecturing hour. The holiday pay element of 8% was not paid in her monthly earnings. It was paid twice a year in January and July as a distinct and separate payment and quite clearly described as such. These dates in January and July are after the lecturing semester and at times when the complainant   was not scheduled for work.

The complainant states that, in May 2020, she raised the rate of pay.        The explanation which was given to her is consistent with her rate of pay of €74.07 asper hercontract. The complainant did not question the rate of pay or the holiday pay until May 2021.

In the meantime, she received payments of holiday pay in January 2020 and July 2020   which was expressly described on her payslip. There was a meeting held about her grievance in May 2021.

By e- mail of July 1st, 2021, the situation concerning holiday pay was explained as being that 8% of the €74.07 was being calculated and 8% of the hours worked with annual leave being taken in January and July. This is entirely consistent with what occurred and with the dates on which the payments were made. (Payslip July 2020 submitted.)

The complainant’s claim under the Organisation of Working Time Act is predicated on the basis that her rate for lectures is €80.00. It is clear from the contract she received from September 2019 and from the payslips that she received each month that this was not the case.

The complainant received her holiday pay at the correct rate calculated in accordance with the Organisation of Working Time Act and in accordance with law. There was no rolled up or consolidated pay as is implied by the complainant   in her legal submissions. The rate of pay was €74.07 per lecturing hour.

The difference between the parties is discernible from the submissions. It turns on what the complainant’s correct rate of pay is. 

As will be seen the number 8% appears above in what might be regarded as a somewhat unusual context.  In fact, 8% only has relevance in the context of the organisation of Working Time Act, 1997 as the multiplier by which the time off on annual leave due to a person may be calculated.

Section 19 sets out the basis on which annual leave will be calculated and these are well known; four working weeks in a leave year in which the employee works 1,365 hours, one third of a working week for each month in the leave year in which the employee works at least 117 hours and, in section (1) (c) adds,

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

This is the only part that 8% plays in the matter of calculating annual leave.

The complainant gave evidence on affirmation that she was told at interview that her rate of pay would be €80.00 per hour.

The respondent insists that it is €74.07 which is roughly 8% less than the €80 she says she was offered, and that 8% was retained to be paid to the employee when they took annual leave.

For the convenience of the reader I set out again the response the complainant got in May 2020 when she raised the matter.

If you mean the gross doesn't match your fee note, this is because 8% of your hourly rate is withheld each month, it accumulates and paid back to you in July and January each calendar year as annual leave pay while there are no classes on. Holiday pay accumulated from January to June is paid out in July and the holiday pay accumulated from July to December is paid out in January. This is the same for all lecturers at independent college Dublin. Your normal hourly rate is €80 and 8% of this is withheld so your monthly hourly rate works out as 74.07.

I am surprised this wasn't mentioned to you when you first started with us! We actually paid out some annual leave pay to you in January already.

The respondent could offer no credible explanation for this bizarre notion; the idea that a worker is in some way required to contribute to a form of saving scheme to fund the payment to them of their annual leave. Indeed there were inconsistencies in relation to the entire matter in the respondent’s position.

And why 8%; by an extraordinary coincidence the figure referred to in the Act but for an entirely different purpose; that of calculating the hours of paid leave to which a worker would become entitled. But they would, of course be entitled to have that ‘holiday pay’ paid to them at their normal rate of pay.

I find, as a matter of fact that is beyond dispute, that the complainant’s contracted rate of pay was €80 per hour. Her contract stated that her pay would be communicated at interview and her entirely credible evidence was that this was precisely what she was told.

While I again note the inconsistency in its position, the respondent does not actually dispute this. In its submission it notes;

The complainant ’s holiday pay of 8% on top of the €74.07 per hour combined amount to €80.00 per lecturing hour. The holiday pay element of 8% was not paid in her monthly earnings. It was paid twice a year in January and July as a distinct and separate payment and quite clearly described as such

I therefore find that the respondent operates a bizarre and unlawful scheme of deductions; (‘the holiday pay element’) purporting to fund annual leave which it should cease immediately. The complainant at no stage agreed to any such arrangement and, on the contrary was told that her rate of pay would be €80.00 per hour.

Any subsequent records (the purported contract, payslips etc) which incorrectly record the lower rate have no standing as evidence. They compound the situation by merely recording the application by the respondent of a system which was applied after the complainant was told that her rate of pay would be €80 per hour..

The only role played by a figure of 8% is to assist the employer in calculating the amount of paid time off on annual leave to which a worker is entitled, nothing else (if it chooses to opt for that method of calculation).

It is hard to understand why, although it is in fact unnecessary to speculate what led the respondent into applying this eccentric device. It was quite wrong, and the complaint is well founded.

Section 27 (3) of the Act sets out the remedies available to an Adjudicator. In addition to determining that the complaint was well founded and requiring the respondent to comply with the relevant provision, it further provides for compensation ‘of such amount as is just and equitable’ having regard to all the circumstances, but not exceeding two years remuneration.

I regard the breach of the complainant’s rights as relatively serious on the spectrum of gravity, whether in originated in a sleight of hand device to reduce the respondent’s financial commitment to the complainant (or other employees), or simple error, it is a serious breach. The complainant earned approximately €1000.00 per week.

Therefore, I make my award based on the substantial justice and equity of her case.

Complaint CA-00045020-001 is well-founded and I order the complainant to comply with the terms of the Organisation of Working Time Act in respect of the complainant’s entitlement to annual leave and to desist from making any deductions from the complainant’s pay rate of €80.00 per hour purporting to fund annual leave entitlements.

Having regard to the justice and equity of the case I award the complainant 10,000.00.

Annual Leave.