Complainant

Respondent

Parties

Justyna  Giallombardo

Abtran Unlimited (amended on consent)

Representatives

IBEC

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-00067119-001

03/11/2024

The Complainant swore an affirmation at the outset of the hearing. Written submissions were received in advance of the hearing and relied upon at the hearing.

Ms Noreen O’Sullivan, HR Manager, gave evidence on affirmation. Ms Ava Fitzgerald, Senior HR Business Partner also appeared but did not give evidence. Submissions were received and relied upon at the hearing.

The name of the Respondent was corrected at the outset of the hearing.

The Respondent was allowed time during the hearing to take instructions on the evidence the Complainant

The Complainant worked 37.5 hours, full time, as a Call Centre Advisor with the Respondent from 26 October 2021 until the date of her resignation on 26 June 2024. Payment of €952 gross was paid to the Complainant fortnightly.

It was the Complainant’s evidence that by email dated 8 July 2024 she was advised that she had accrued annual leave hours for 2023 and 2024 while on sick leave of which 138 hours she was not paid for. She accepted that in April 2025, she received payment for 65.5 hours which left a remainder of 72.5 hours. Upon inquiry she was asked when the 72.2hours related to and it was her evidence it was from 2022.

It was her evidence that the reason for her resignation in June 2024 was to secure her annual leave entitlement as it was due to expire following her return to work following a period of certified sick leave.

It was further submitted that she was due 120 hours for public holiday entitlement for 2023 and 2024 but was not paid for this entitlement upon cessation of employment.

The Complainant sought redress of 2 years compensation pursuant to section 27 of the Act based on the delay in addressing the complaint by the Respondent and failure to engage with her. She also made reference to the impact on her health.

Response to Letter of 6 May 2025

In response to the Respondent’s acceptance of non-payment of the Complainant’s public holidays, she replied on 3 June 2025 stating that as of the date of the email, no payment had been received despite the commitment to make payment immediately of the three public holidays in 2022.

The Respondent conceded that there was an error in the calculation of the annual leave entitlement which accrued during the period the Complainant was on sick leave. Upon a detailed review of the question, a mistake was identified and addressed. Evidence of payment of 65.5 hours was given by Ms O’Sullivan on 4 April 2025.

It was denied in evidence that there were any outstanding leave or public holiday hours due to the Complainant.

Submissions were made on the appropriate level of compensation, if any.

Letter of 6 May 2025

However, by letter dated 6 May 2025, the Respondent wrote to the Workplace Relations Commission seeking to correct its evidence. It was stated in the letter that the Complainant was entitled to be paid for three public holidays – 6 June 2022, 1 August 2022, and 31 October 2022. The writer of the letter further committed that instruction for payment would be made “immediately”. An unreserved apology was given to the Workplace Relations Commission.

The burden of proof rests with the Respondent to ensure that it holds adequate records to demonstrate compliance with the Organisation of Working Time Act 1997 (the “1997 Act”). There were repeated admissions by the Respondent of inaccurate records, despite the Complainant’s persistent efforts to obtain what she was entitled to from 2022 to 2024. This is simply not good enough on the part of an employer who is obliged under Section 25 of the 1997 Act to keep statutory records and ensure that an employee’s statutory entitlements to leave are upheld.

Based on the evidence before me, together with the Respondent’s admissions, I am not satisfied that the Respondent complied with its obligations under the 1997 Act. Consequently, it has not discharged the burden of proof, and I find that the complaint is well founded

Section 27 (3) of the 1997 Act (as amended) provides:

“(3) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely:

(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.”

Based on the evidence before me, I find that the complaint is well founded.

In the circumstances, I consider compensation to be the most appropriate form of redress. In determining the amount of compensation, regard has been given to the Respondent’s delay in addressing the Complainant’s entitlements, despite having been provided with all relevant information and legislative provisions by the Complainant, as well as the eleventh-hour admission of a miscalculation of the Complainant’s entitlements. The Respondent’s submission that this was a technical error is not accepted.

While it is noted that an apology was made to the Workplace Relations Commission, the absence of any acknowledgment or apology to the Complainant, who was the one who has suffered the loss and spent considerable time seeking to recover her entitlement, has also been taken into account.

For these reasons, I award compensation in the amount of €6,188, the equivalent of 13 weeks’ remuneration, as being just and equitable in the circumstances.

Organisation of Working Time Act