Complainant

Respondent

Parties

Martin  Moran

Starrus Eco Holdings Limited

Representatives

Ciara Ruigrok BL instructed by L.O'Connor & Co.

Darach McNamara BL instructed by Rory Muldowney

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-00063684-001

24/05/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00063684-002

24/05/2024

The Complainant gave evidence on oath.

Mr Dara Mink, Head of Insurance with the Respondent, gave evidence on affirmation. Ms Tracy Doherty, Head of Human Resources, also gave her evidence on affirmation.

These complaints were heard together with ADJ-00048565.

Written submissions were received in advance from both parties. Additional time was afforded to enable further submissions to be filed. The Complainant was granted until 12 September 2024 to file further material in relation to annual leave and public holiday entitlements. The Respondent was granted until 26 September 2024 to file a reply, should they have wished to do so.

Upon review of the case file, no further submissions were received from either party.

CA-00063684-001

It was the Complainant’s evidence that he did not take any annual leave in 2020 or 2021. He stated that he regularly worked as cover for drivers on leave, noting that “a lot of weeks I did 5 days”. He further stated that he worked from approximately 4:00am to 2:00pm or 3:00pm from January to June 2022, after which he was on sick leave and did not return to work thereafter.

CA-00063684-002

It was the Complainant’s evidence that he did not receive payment for public holidays.

At the conclusion of the hearing, it was submitted on behalf of the Complainant that the issue of public holiday entitlements would be addressed in written submissions. As outlined above, no further submissions were received from either party.

CA-00063684-001

The Respondent denied that any annual leave payment was due to the Complainant. However, by letter dated 28 May 2024, which was referenced during the hearing, the Complainant was informed that he had accrued 96 hours of annual leave in 2023. The Complainant declined this offer.

The Respondent submitted that the complaint regarding annual leave was out of time. The relevant cognisable period is from 21 April 2023 to 20 October 2023, being the six-month period preceding the date on which the complaint was submitted to the Workplace Relations Commission. It was further submitted that the annual leave year, running from 1 April 2022 to 31 March 2023, had concluded prior to the cognisable period and therefore, the Complainant’s claim under the Organisation of Working Time Act 1997 was statute-barred.

CA-00063684-002

The Respondent conceded that the Complainant was entitled to payment in respect of public holidays falling within the cognisable period, specifically 1 May 2023, 5 June 2023, and 7 August 2023.

Preliminary Objection

The time limits for submitting complaints under the Workplace Relations Act 2015 are set out in Section 41 (6) of the Workplace Relations Act 2015 : -

“(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

No extension of time application was made at the hearing

CA-00063684-001

Section 19 of the Act provides for the entitlement for annual leave:-

“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.”

The leave year is defined in Section 1 of the Act as “leave year”means a year beginning on any 1st day of April”.

The Complainant was absent for a period due to illness but was certified fit to return to work from December 2022. In accordance with Section 19(1A) of the Organisation of Working Time Act 1997, any entitlement to annual leave accrued during the six-month period of certified sick leave should have been availed of upon his return to work. However, as part of his wider case, the Complainant did not return to work.

Section 20(1)(c) of the Act provides that where an employee is unable to take annual leave due to illness, such leave must be taken "within the period of 15 months after the end of that leave year." I find that this 15-month period commenced in December 2022 and expired in March 2023.

The Complaint Form was submitted to the Workplace Relations Commission on 24 May 2024. Accordingly, I find the complaint falls outside the time limit provided for under Section 41(5) of the Workplace Relations Act 2015, and I therefore do not have jurisdiction to hear the matter.

On this basis, I find the complaint is not well-founded.

CA-00063684-002

This complaint was heard along with ADJ-00048565 which also included a complaint relating to public holidays. In the circumstances where there was no evidence that the Complainant worked at “least 40 hours during the period of 5 weeks ending on the day before that public holiday.” as provided for in Section 4 (1) of the Act.

On this basis, I find the complaint is not well-founded.

CA-00063684-001 

I find the complaint is not well-founded.

CA-00063684-002

I find the complaint is not well-founded.

Public Holidays – Annual Leave