Complainant

Respondent

Parties

Liam  Young

David Feeney

Representatives

  N/A

 N/A

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-00065799-001

05/09/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00065799-002

05/09/2024

The Complainant worked for the Respondent from 11 March 2024 until 27 June 2024, as an electrical apprentice / trainee. He worked 39 – 45 hours per week, earning €16.57 gross per hour plus overtime, as well as €168 for “lodgings” per week.

The Complainant alleges that he did not receive payment regarding his accrued annual leave upon the termination of his employment, in breach of the Organisation of Working Time Act 1997, as amended. The Complainant further alleges that he did not receive payment regarding his last week of “lodgings” for June 2024, totaling €168, in breach of the Payment of Wages Act 1991, as amended.

The Complainant provided oral submissions.

The Complainant outlined that he worked for the Respondent as an electrical apprentice / trainee. He outlined that he worked at the new college in Athlone and that he was staying in Roosky. His daily tasks included: bending conduit for containment; and cutting ladder and tray for containment.

The Complainant stated that he got the job through a friend he had previously worked with. The Complainant outlined that he called the Respondent who said that he had a job starting in two months. The Respondent then called the Complainant back six weeks later and told him that he would take him on. The Complainant stated that he received a text message from the Respondent which stated that the Respondent would pay full rate and “expenses” – amounting to €16.57 gross per hour and “lodgings” of €168 per week. These “expenses” or “lodgings” covered accommodation, travel and food.

The Complainant confirmed that his RoS details and his payslips indicate that his employer is the Respondent, as named above. The Complainant stated that he was not provided with a contract.

The Complainant outlined that he initially worked approximately 39 hours, over 4 days per week from Monday to Thursday. He had no problems for the first few weeks of his employment. He was then joined by three more employees – two trainees and one qualified employee. The Complainant outlined that there was a delay regarding the payment of his wages at the end of his first month. He stated that he did get the money, but it was “awkward”.

The Complainant outlined that around mid-March 2024, the Respondent told him that he was cutting his lodging to €98, unless he worked a further half day on Fridays. The Complainant then worked the additional hours. However, he stated that at the end of June 2024, he worked 39 hours over four days and that his lodgings were cut completely. The Complainant argued with the Respondent about this over the phone. The Complainant outlined that the Respondent subsequently messaged him, stating that he could join an employee who had previously left. The Complainant left his employment without notice, on 27 June 2024. The Complainant outlined that he was out of pocket regarding lodgings for one week in June 2024, amounting to €168.

The Complaint subsequently sought pay for his accrued annual leave. He said that the Respondent told him to ask his new employer for it. The Complainant outlined that, during his employment, he took one day of annual leave on 15 May 2024.

The Complainant outlined that he is now completing his traineeship.

There was no attendance by or on behalf of the Respondent.

In a letter from the WRC dated 3 March 2025, the Respondent was informed of the details of the Hearing to take place on 30 April 2025. The same letter also set out the procedure regarding postponement requests.

On 25 April 2025, the WRC called the Respondent to obtain attendee details for the (remote) Hearing. The Respondent indicated that he would not attend the Hearing. On 30 April 2025, when the Hearing was due to commence, the WRC called the Respondent to enquire if he was attending the Hearing. The Respondent again indicated that he would not attend the Hearing.

In the circumstances, I am satisfied that the Respondent was on notice of the Hearing and decided not to attend.

CA-00065799-001 – Accrued Annual Leave Complaint:

The Law:

Pursuant to section 19(1) of the Organisation of Working Time Act 1997, as amended, (the “OWTA”), an employee is entitled to the following paid annual leave:

“(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.”

Section 23 of the OWTA provides for the payment of compensation to the employee for loss of annual leave on cesser of employment.

In Waterford City Council v. Mr. Stephen O’Donoghue, DWT0963, the Labour Court held:

“The only leave year which is cognisable for the purpose of determining if an employee received his or her statutory entitlement is that prescribed by the Act itself, that is to say a year starting on 1st April and ending on 31st March the following year. While different arrangements may be put in place for administrative purposes, in determining if a contravention of the Act occurred that Court can only have regard to the leave allocated to an employee in the statutory period.”

Section 27(3) of the OWTA empowers an adjudication officer to do one or more of the following:

“(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.”

Findings and Conclusion:

The Complainant’s evidence was uncontested. The Complainant submitted his Complaint Form to the WRC on 5 September 2024. In accordance with section 41(6) of the Workplace Relations Act 2015, the cognisable period for this complaint runs from 6 March 2024. The Complainant outlined that he worked for the Respondent from 11 March 2024 until 27 June 2024. He submitted that during this time, he took one day of annual leave on 15 May 2024.

Section 2 of the OWTA provides that the “leave year” is any year beginning on 1 April. However, in this matter, section 23(1)(b)(ii) of the OWTA applies and so the leave accrued by the Complainant during the previous leave year can also be taken into account. Therefore, in this matter, the relevant period runs from 11 March 2024 until 31 March 2024; and from 1 April 2024 until 27 June 2024, when the Complainant’s employment ended. During this time, on a pro-rata basis, the Complainant accrued approximately six days of annual leave. The Complainant stated that he took one day of annual leave during this time. Therefore, on cessation of employment, the Complainant was owed five days of annual leave.

In the circumstances, I find that the complaint is well founded. I note that the right to annual leave is derived from the Working Time Directive. In Von Colson & Kamann v. Land Nordrhein-Westfalen [1984] ECR 1891, the Court of Justice of the European Union 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.

Pursuant to section 27(3) of the OWTA, I order the following:

·             The Respondent to pay the Complainant €746 gross (approximately 45 hours’ / 5 days’ pay) for the financial loss which the Complainant suffered; and

·             The Respondent to pay the Complainant compensation in the amount of €1,492 (approximately two weeks’ pay) for the breach of the Complainant’s statutory rights.

This award is just and equitable having regard to all the circumstances.

CA-00065799-002 – Payment of Wages Complaint:

The Law:

Under the Payment of Wages Act 1991 as amended (the “PWA”), “wages” means:

“any sums payable to the employee by the employer in connection with his employment, including—

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:

Provided however that the following payments shall not be regarded as wages for the purposes of this definition:

(i) any payment in respect of expenses incurred by the employee in carrying out his employment,

(ii) any payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as compensation for loss of office,

(iii) any payment referable to the employee's redundancy,

(iv) any payment to the employee otherwise than in his capacity as an employee,

(v) any payment in kind or benefit in kind,

(vi) any payment by way of tips or gratuities.”

Findings and Conclusion:

The Complainant’s evidence was uncontested. He also provided documentation in support of his complaint, including payslips. The Complainant outlined that, in addition to his hourly wage, he received “expenses” or “lodgings” of €168 per week, which covered accommodation, travel and food. I note that “expenses” or “lodgings” are not regarded as “wages” for the purposes of the PWA. Therefore, I find that this complaint is not well founded.

CA-00065799-001 – Accrued Annual Leave Complaint:

For the reasons set out above, I find that this complaint is well founded. Pursuant to section 27(3) of the OWTA, I order the following:

·             The Respondent to pay the Complainant €746 gross (approximately 45 hours’ / 5 days’ pay) for the financial loss which the Complainant suffered; and

·             The Respondent to pay the Complainant compensation in the amount of €1,492 (approximately two weeks’ pay) for the breach of the Complainant’s statutory rights.

CA-00065799-002 – Payment of Wages Complaint:

For the reasons set out above, I find that this complaint is not well founded.

Organisation of Working Time Act 1997, Accrued annual Leave, Payment of Wages Act 1991.