Complainant

Respondent

Parties

Luke  Caragher

Jms International Holding Ltd Shanahans On The Green

Complainant

Respondent

Anonymised Parties

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Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00068801-001

23/01/2025

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

CA-00068801-002

23/01/2025

The Complainant was employed as a Waiter by the Respondent from 7 November 2023. He stated that he did not receive either his minimum notice entitlements or his outstanding holiday pay following the termination of his employment on the grounds of redundancy on 5 October 2024.  

He stated that he did not receive either his minimum notice entitlements, namely one weeks’ pay or his outstanding holiday pay, namely 10 days’ pay, following the termination of his employment on the grounds of redundancy on 5 October 2024. 

The Respondent did not attend the hearing to give evidence.

CA-00068801-001:

Section 1 of the Payment of Wages Act 1991 (“the Act”) defines wages as:

“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,”

In Marek Balans -v- Tesco Ireland Limited [2020] IEHC 55 approving Dunnes Stores (Cornels court) Limited -v- Lacey [2007] 1 1.R. 478, it was stated a decision-maker must firstly determine what wages are properly payable under the employment contract before determining whether there has been a deduction under the Payment of Wages Act 1991.  While each case will turn on its own particular facts, it is necessary to ascertain, in the instant case, (1) whether the pay constituted a term of the Complainant’s contract and (2) if has there been a contravention of Section 5 of the Act.

Given the undisputed evidence of the Complainant, I am satisfied that he was not paid in the amount of €1,100, namely one week’s notice, in respect of his notice entitlements.

CA-00068801-002:

The Law

Article 7 of the Working Time Directive (2003/88/EC) sets out the entitlement to paid annual leave as follows:

“Annual Leave 1.  Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice.  2. The minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is ended.”   

This provision is transposed into Irish lay by virtue of the enactment of Sections 19, 20 and 23 of the Organisation of Working Time Act.

Section 19 of the Organisation of Working Time Act 1997 outlines that an employee’s annual leave entitlement is based on the amount of time that they have worked during the year as is calculated in three ways:

(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):

Section 20 (1) deals with the times at which annual leave is granted to an employee and this is determined by the employer subject to a number of provisions:

(a)   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 one 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 within the leave year to which it relates or, with the consent of the employee, within 6 months thereafter.

(2) The pay in respect of an employee’s annual leave shall –

(a) be paid to the employee in advance of his or her taking the leave,

(b) be at the normal weekly rate or, as the case may be, at a rate which is proportionate to the normal weekly rate, and ….”

Section 21 of the Acts states as follows in relation to public holidays:

21.—(1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—

(a) a paid day off on that day,

(b) a paid day off within a month of that day,

(c) an additional day of annual leave,

(d) an additional day's pay:

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.

(2) An employee may, not later than 21 days before the public holiday concerned, request his or her employer to make, as respects the employee, a determination under subsection (1) in relation to a particular public holiday and notify the employee of that determination at least 14 days before that holiday.

(3) If an employer fails to comply with a request under subsection (2), he or she shall be deemed to have determined that the entitlement of the employee concerned under subsection (1) shall be to a paid day off on the public holiday concerned or, in a case to which the proviso to subsection (1) applies, to an additional day's pay.

(4) Subsection (1) shall not apply, as respects a particular public holiday, to an employee (not being an employee who is a whole-time employee) unless he or she has worked for the employer concerned at least 40 hours during the period of 5 weeks ending on the day before that public holiday.

(5) Subsection (1) shall not apply, as respects a particular public holiday, to an employee who is, other than on the commencement of this section, absent from work immediately before that public holiday in any of the cases specified in the Third Schedule .

(6) For the avoidance of doubt, the reference in the proviso to subsection (1) to a day on which the employee is entitled to a paid day off includes a reference to any day on which he or she is not required to work, the pay to which he or she is entitled in respect of a week or other period being regarded, for this purpose, as receivable by him or her in respect of the day or days in that period on which he or she is not required to work as well as the day or days in that period on which he or she is required to work.

Findings:

As set out in the Act above, an employee is entitled under this legislation to 4 weeks or 20 days annual leave per year. He/she is also entitled to ten public holidays per year.

The Complainant stated that he was owed 10 days outstanding annual leave at the end of his employment in the amount of EUR 2,200.

As the Respondent did not dispute this, I find that this complaint is well founded.

CA-00068801-001:

I find that this complaint is well founded for the reasons set out above and direct that the Respondent pays compensation to the Complainant in the amount of EUR1,100. This is a gross figure and is subject to taxation and any statutory deductions.

CA-00068801-002:

I find that this complaint is well founded for the reasons set out above and direct that the Respondent pays compensation to the Complainant in the amount of EUR2,200.