Complainant

Respondent

Parties

Josemir Gomes Da Sila

Freshly Chopped Smithfield Ltd t/a Neat Pizza

Representatives

Self-represented

Peninsula

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-00065565-001

23/08/2024

The complainant was employed by the respondent from April 2021 until 19 July 2024.

The complaint referred to the Commission on 23 August 2024 referenced the complaint type as non-receipt of public holiday entitlements. 

Submissions received from the complainant on 22 November 2024 included work schedules and raised an issue concerning annual leave.

On the first hearing date, the complainant advised that his complaint did not relate to public holiday entitlements. 

The complainant did not understand when he was told, on cessation of his employment with the respondent, that he had a balance of 4.89 days accrued annual leave as he had never taken annual leave.

The respondent used the complainant’s accrued annual leave to make up weekly working hours of 39 hours when the complainant was rostered/worked less than 39 hours.

The complainant received a payment of approximately €1,200.00 from the respondent in September 2024 but did not know what this related to. 

The complainant received benefit for all public holidays in accordance with the Organisation of Working Time Act 1997.  The respondent undertook to submit records evidencing this and of annual leave granted to the complainant.

Complaints raised by the complainant on 30 April 2025 were statute barred.

At the outset of the hearing on 11 February 2025, I explained to the parties my jurisdiction under the Organisation of Working Time Act 1997 (the “1997 Act”) in respect of complaints concerning public holidays and I addressed with the parties the public holidays falling within the cognisable period.  The complainant advised that he did not have a complaint in relation to the relevant public holiday entitlements but that the issue concerned annual leave.  The hearing was adjourned so that the respondent could respond to this aspect of the complaint, which had been raised by the complainant in submissions to the Commission, received 22 November 2024, and exchanged with the respondent.  Prior to adjourning the hearing, the respondent undertook to submit to the Commission any relevant documentation or submissions concerning public holidays and annual leave in the cognisable period.

I arranged for the hearing to be reconvened. 

Prior to the second hearing date of 15 May 2025, the complainant submitted to the Commission on 30 April 2025 a professional experience statement and complaints in connection with his employment from 2021 up until 19 July 2024.  A submission was received on behalf of the respondent on 12 May 2025, the focus of which was on the statutory timeframe for presentation of complaints to the Commission.

I informed the parties on 15 May 2025 that I was not investigating various matters raised by the complainant on 30 April 2025 as they were outside the scope of my jurisdiction whether by reason of statutory referral timeframes or the complaint subject matter.  I clarified with the parties that the subject of my investigation, based on the complaint referred to the Commission under the 1997 Act, the complainant’s submissions of 22 November 2024 and position at the hearing in February 2025, was in relation to annual leave entitlements. 

Due to some misunderstanding, the respondent did not submit annual leave records prior to the hearing on 15 May and did not have said records for the complainant at the hearing.  The respondent’s representative undertook to submit the records on or before 30 May 2025.  Further to a follow-up communication from the Commission, annual leave records were ultimately submitted on behalf of the respondent on 17 June 2025 and exchanged with the complainant for comment.

Following the second hearing date, the complainant emailed the Commission on 12 June 2025 raising the matter of public holiday payment.  In circumstances where the complainant advised on the first hearing date that there was no issue in this regard, did not raise the matter on the second hearing date and sought to raise it by way of a post-hearing communication with no specificity as to the alleged contravention, I do not consider it appropriate to adjudicate on public holiday entitlements.

The Law

Section 19 of the 1997 Act sets out 3 different ways for calculating annual leave entitlement, based on an employee having worked hours in the leave year. 

Section 19(1) of the 1997 Act provides:

“. . . 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.”

In relation to taking annual leave, section 20 of the 1997 Act provides as follows:-

“(1) the times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements and subject—

(a) to the employer taking into account—

(i) the need for the employee to reconcile work and any family responsibilities,

(ii) the opportunities for rest and recreation available to the employee,

(b) to the employer having consulted the employee or the trade union (if any) of which he or she is a member, not later than 1 month before the day on which the annual leave or, as the case may be, the portion thereof concerned is due to commence, and

(c) to the leave being granted—

(i) within the leave year to which it relates,

(ii) with the consent of the employee, within the period of 6 months after the end of that leave year, or

(iii) where the employee—

(I) is, due to illness, unable take all or part of his or her annual leave during that leave year or the period specified in subparagraph (ii), and

(II) has provided a certificate of a registered medical practitioner in respect of that illness to his or her employer,

within the period of 15 months after the end of that leave year.”

Section 2 of the 1997 defines the leave year as a year beginning on any 1st day of April.

Section 23(1) of the 1997 Act, in relevant part, provides for compensation for accrued annual leave on cessation of employment as follows:-

“(a) Where-

(i)                  an employee ceases to be employed, and

(ii)                the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee,

the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave.

(b) In this subsection-

“relevant period” means-

(i)                  in relation to a cessation of employment of an employee to who subparagraph (i) of paragraph (c) of subsection (1) of section 20 applies, the current leave year,

(ii)                …”

Sections 41(6) and 41(8) of the Workplace Relations Act 2015 set out the relevant time limits for referral of complaints, namely that a complaint must be presented within 6 months of the date of contravention to which the complaint relates, which may be extended to 12 months where it is established that the failure to present the complaint within 6 months was due to reasonable cause.

Application of the law

This complaint under the 1997 Act was presented to the Workplace Relations Commission on 23 August 2024.

The cognisable period covered by the claim is 24 February 2024 to 23 August 2024.  It was common case that the complainant’s employment with the respondent ceased on 19 July 2024.

The complainant complained of holiday pay manipulation and of an inaccurate amount received in compensation for accrued annual leave on cessation of employment.  The complainant submitted that in weeks where he worked less than 39 hours, the respondent topped up his hours to 39 hours by using his annual leave entitlement.

Having very carefully reviewed the documentation submitted by the respondent, which was not contested by the complainant, I have established the following. 

The complainant’s annual leave entitlement in employment with the respondent was to a set number of 20 annual leave days per annum by reference to a calendar year.  For the year commencing 1 January 2024, in which a cessation of employment occurred, the complainant had a pro rata entitlement to 13.01 days annual leave.   The complainant’s first paid annual leave in 2024 was 14 days in April 2024, which corresponds with the information provided by the respondent on the complainant’s annual leave days carried over from the previous calendar year. 

In the weeks ending 2 June 2024, 7 July 2024 and 14 July 2024, the complainant’s actual hours of work, which hours were less than 39 hours, are recorded with a note that states ‘full week pay with adjustment to holiday balance on under 39 hours’.  The adjustment to holiday balance is the differential between the actual hours worked and the 39-hour total amount.   Payslips for weeks ending 2 June 2024 and 7 July 2024 record taxable weekly gross pay as €625.00, which is made up of weekly pay and holiday pay.  The holiday pay amount represents the differential between actual hours worked and 39 hours and corresponds with the used annual leave records submitted by the respondent.

The complainant received a payment from the respondent in September 2024 of in or around €1,200 and, based on the respondent’s records, this was a payment for annual leave balance of 9.89 days.

The 1997 Act enables an employer to determine the times at which annual leave is granted having regard to work requirements.  This however is subject to an employer taking into account certain matters from the employee’s perspective, and consultation with an employee no later than one month before the leave is due to commence.   I am not satisfied that the use and adjustment of accrued annual leave to top up the complainant’s weekly pay to reflect 39 hours worked is in line with section 20(1) of the 1997 Act or Article 7 of the Working Time Directive (2003/88/EC), both of which give effect to the fundamental social right to paid annual leave.

I calculate the complainant’s annual leave entitlement in the relevant period/current leave year, within the meaning of section 23 of the 1997 Act, to have been 6.4 days.  I find that the complainant was not compensated for the loss of that leave on cessation of employment in accordance with 23 of the 1997 Act.  The respondent’s use of the complainant’s accrued annual leave balance by 1.73 to top up weekly working hours/pay over 2 June, 7 July and 14 July 2024 impacted on the complainant’s entitlements under the 1997 Act.  For the avoidance of doubt, my finding has taken account of the payment to the complainant in September 2024 for 9.89 days, which I am satisfied from the information before me relates, in part, to the complainant’s annual leave entitlement from the previous leave year.  It is also noted that the respondent’s records, following deduction of the 1.73 days and payment of the value of 9.89 days in September 2024, show that there remained 2.03 accrued annual leave days for the complainant.

Having regard to all the circumstances, including the lump sum payment for 9.89 days annual leave made to the complainant after the complaint was referred to the Commission and the financial value of the accrued leave in the relevant period, I require the respondent pay to the complainant compensation of €950.00 which I consider just and equitable for breach of the statutory right.

For the reasons set out above, I find that the complaint under the 1997 Act of a contravention of section 23 of the Act is well founded, and require the respondent pay to the complainant compensation of €950.00 which I consider just and equitable for breach of the statutory right.

Organisation of Working Time Act 1997 – Accrued annual leave – Grant of annual leave - Compensation on cessation of employment