Complainant

Respondent

Parties

Aidan Hussey

Capita Customer Solutions ltd (amended on consent)

Representatives

  Appeared In Person

 Rachel Walsh

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-00067837-001

03/12/2024

On December 3, 2024, the Complainant, a Customer Support Agent and Lay Litigant submitted a complaint under the Organisation of Working Time Act, 1997 that he had not received his accrued annual leave at the respondent business.

On the next day, December 4, 2024, the Respondent was notified of the claim.

On the 6 January 2025 the parties were both invited to attend a hearing set for 31 January 2025 in WRC Office, Cork.

The Complainant was the sole attendee on that day.

I conducted the hearing on an ex-parte basis. I explained that on occasion a party may make submissions in the aftermath of a hearing with reasons for their nonappearance.

I explained to Mr. Hussey that in the event that the Respondent submitted that they wished to be heard on advancing a compelling argument, I would canvas his views prior to making my own decision.

On 11 February 2025 the HR Suite declared that they were coming on record in the claim.

“ .. My client was not aware of the claim and was not in receipt of the claim form and further communications received after the hearing date of 31 January 2025 as the correspondence did not go to the correct location in the business.

I would appreciate if you can assist me, please as to if the case was heard and also can you send me any documentation and correspondence in respect of the claim at your convenience “

This was copied to the complainant for his attention.

On 17 February 2025, I wrote to the Complainant and canvassed his views on whether he consented to a resumed hearing?

 I explained what format that would take.

The complainant initially refused to consider resumption. However, he agreed to resume the case on 24 February 2025.

On foot of this development, I agreed to reconvene the case and invited the parties to engage informally without prejudice “to seek to fix the dispute “

I canvassed documents for the resumed hearing.

Both Parties were invited back to hearing set for 16 May 2025.

The HR suite went off record on 12 May 2025 and the case for the Respondent was now in the hands of their Human Resource Dept.

Rachel Walsh, Head of HR, submitted a written submission in defence of the claim on 15 May 2025.

Both Mr. Hussey and Ms. Walsh took the oath to accompany their evidence. 

At the conclusion of the second day of hearing, I requested a record of the complainant’s applications for annual leave from the respondent service to assist in my decision making in this case.

This was received, shared with the complainant, however, it did not generate a response.

The Complainant was employed by Capita Customer Solutions ltd from 10 July 2024 to 10 November 2024 as a full time Customer Support Agent in receipt of €12.70 per hour. He was a Remote worker.

It was his case that he had not received the total amount of annual leave due to him as each time he requested leave, it was denied.

On the first day of hearing, the complainant gave evidence that he had made 30 requests for annual leave during his tenure and was refused. He presumed the matter would have been addressed in the context of his leaving in November 2024, but a residual 7 hours remained accrued, but untaken by him.

He had received payment for 53 hrs annual leave reflected in his December 2024 pay slip. He had recorded 3 sick days during his tenure.

The Complaint explained that he worked 8 am to 8pm over a Monday to Sunday roster.

The Complainant that he was dissatisfied with many aspects of his employment and intended on augmenting his claim.

I explained that I could just address the one complaint I had been given.

I asked the complainant if he had engaged in a localised conversation to resolve his matters of concern in the workplace?

 He told the hearing that he had not.

On the second day of hearing, 16 May 2025, the Complainant clarified that it was not his intention to advance any further claims outside of the instant claim. He accepted the summary provided of January 31, 2025.

The Complainant confirmed that he was paid for 2 out of the 4 sick days availed of. He acknowledged that payment of outstanding annual leave was across two pay periods.

He submitted that he had found the period of employment with the respondent to be very stressful as he had been overworked and under supported in his multitude of requests for leave. He sought compensation for the “misinformation “surrounding his denial of annual leave and to aide closure in this difficult period.

In cross examination, Ms Walsh tested the complainant’s knowledge on annual leave as explained on the contract and through induction. The Complainant confirmed he understood the system, but his point was being denied annual leave when he applied.

He concluded that he had been unfairly treated as he had been denied an actual explanation for this refusal.

The Respondent operates a Business Process Outsourcing provider and accepts that the complainant was employed as a customer service agent from 8 July to 10 November 2024 which equated to 4 months and 2-day service.

 He was one of 950 employees.

The respondent exhibited payslips, a contract of employment, (annual leave entitlement, 20 days plus 2 discretionary days at Christmas.

The Respondent submitted a “leave record form”

125 days worked

0 annual leave taken from 60.27 hrs accrued at exit of employment.

It was the Respondent case that Mr Hussey was paid:

8.76 days at €904.68

Rather than

7.59 days at €783.29

This constituted an overpayment of €121.39, which the respondent was prepared to overlook.

In evidence, Ms Walsh submitted that the respondent had endeavoured to resolve the dispute directly with the complainant but had been unsuccessful as the goal posts kept shifting.

The Respondent has outlined and explained the system of annual leave centred on an optimal three week in advance request system, where right of appeal for denial rested in the grievance procedure which was not activated in this case.

Ms Walsh acknowledged that an error had occurred in the calculation of leave owing but the company was not pursuing this.

The Respondent concluded that there was no further annual leave owed to the complainant and no basis for compensation.

I have been requested to reach a decision on the claim submitted that the complainant was denied the total amount of annual leave due to him.

In reaching my decision, I have regard for all submissions submitted by the parties and oral evidence.

I am grateful to the complainant for hi agreement to reconvene the hearing from January 31, 2025.

Entitlement to annual leave is provided in Section 19 of the Organization of Worki9ng Time Act, 1997.

Section 20 of that Act sets down the times and pay for annual leave.

Times and pay for annual leave.

20.— (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 to take all or any 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 23 is the focus of this case as the claim came in shortly after the employment ceased.

Compensation on cesser of employment.

23.— (1) (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 whom subparagraph (i) of paragraph (c) of subsection (1) of section 20 applies, the current leave year,

The Complainant has come to hearing and has submitted that he was denied annual leave during the course of his employment.

I shared the provisions of Section 19, 20 and 23 with both Parties and canvassed their response.

The Respondent has demonstrated to my satisfaction that the complainant received annual leave outstanding in accordance with Section 23. The over payment is not being pursued.

The Complainant disputes this and pointed to the misinformation he received regarding his requests for information with which to populate his complaint to the WRC. This occurred following the conclusion of employment.

His most strident point centred on his being denied leave during the employment. He accepts that he did not pursue a grievance to seek to resolve this. Perhaps his status as a remote worker created a distance from this resolution?

However, to seek to assist in my decision making, I asked for a printout of the requests made for annual leave during the course of the employment. The record exhibited by the respondent allowed me to understand what occurred here.

Some of the leave requested was approved but untaken as it post-dated the employment, some of the requests were made between midnight and 1 am for periods of one hour and, some requests were met with approval and then altered by the complainant. The late-night requests were rejected by automation as being submitted outside of the complainants own working hours.

Another request covered Christmas leave, which operated through an alternative system.

This document was shared with the complainant, who has not recorded a response in dispute.

Having considered all that I have heard and all that I have reviewed, I am satisfied that the complainant secured all annual leave accrued by him and untaken on the conclusion of employment.

I appreciate that the system was highly electronic, and the complainant was a remote worker.

However, this is a matter which could and should have been addressed at exit interview.

Finally, I accept that the management of allocation of annual leave was fragmented. I accept that the respondent has not pursued the over payment.

On the evidence before me, I cannot identify a contravention of the Organisation of Working Time Act, 1997 as the complainant has received his cesser pay in accordance with Section 23 of the Act.

I find the claim is not well founded.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision with regard to this claim in accordance with Section 23 of that Act.

On the evidence before me, I cannot identify a contravention of the Organisation of Working Time Act, 1997 as the complainant has received his cesser pay in accordance with Section 23 of the Act.

I find the claim is not well founded.

Annual leave on cessation of employment