Complainant

Respondent

Parties

Catherine  O'Driscoll

Metron Stores Limited t/a Iceland (in liquidation)

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-00057557-001

04/07/2023

The Complainant worked for the Respondent from May 2019 until May 2023.  Most recently, she held the role of Duty Manager at the Midleton branch. It was the Complainant’s uncontested evidence that she worked approximately 30 hours per week, earning €11.75 per hour. In May 2023, the Complainant handed in her notice. The Complainant alleges that the Respondent acted in breach of the Organisation of Working Time Act 1997, as amended and that she is due payment for 44 hours of accrued annual leave.

The Complainant provided uncontested oral submissions.

The Complainant outlined that she started in the role of a cleaner for the Respondent, working approximately 20 hours per week. She stated that she was happy in that role. However, after six months and on the suggestion of her Manager, she began working on the till. She also worked on the shop floor. She stated that she loved working with customers.

The Complainant outlined that she was most recently asked to take on the role of Duty Manager in the Midleton branch. She did not believe that she had enough experience but decided to “give it a go”. She commenced the role in September / October 2022. She found it a little stressful but “[she] got there”. She said that the Respondent was running out of people and that it was a tough environment. However, she liked the role.

The Complainant outlined that she planned to take her holidays in January 2023 and that she requested 44 hours which were owed to her. She outlined that the Manager told her that he had to take parental leave and that she could take her annual leave at a later date. She said that she was “tired and exhausted”. She said that her annual leave balance showed that she had 44 hours of annual leave outstanding.  She said that her Manager took longer parental leave than originally planned and that she was told that she could take her annual leave “after the takeover”. She said that after the takeover, her annual leave balance went to minus 21 hours. She said that she called HR and she was told that they would look into it but she did not hear anything. She said that she spoke to other colleagues who told her that they all had their holidays “wiped”. She said that she could not afford this loss.

The Complainant outlined that she completed the WRC paperwork as she did not know what to do. She said that she spoke with her Manager in February 2023 and said that she either needed to take the annual leave or get paid for it. She said that he told her that it would be “sorted out”. She said that he left and was replaced by another Manager who was known to the Complainant and who she could not work with. She also said that there was a reduction of €2 per week to employees’ salaries. She said that everyone handed in their notice and left. She said that she also gave two weeks’ notice, however, she worked only one week. She said that she sent a text message to the Area Manager who wished her the best of luck. She said that she asked him about holiday pay, but that he said to take it up with HR. She said that no one in HR replied to her. She said that her calls to HR were either ringing out or when they were answered, she was told that the relevant person was not there. She said that she does not have anything in writing.

The Complainant outlined that she received four weeks’ annual leave pro rata and that she “built it up with overtime”. She stated that she took one week’s holiday in May 2022 and that she took another week’s holiday in October 2022. She stated that she took no leave since October 2022. She said that she took no annual leave over Christmas 2022.

The Complainant outlined that she received payslips but that she was not sure if she had any copies as she changed her phone. She outlined that she believes that she was “very badly done by” and that she was upset. She  stated that she worked hard for her holidays.

The Complainant submitted that she received no redundancy or other payments since her employment terminated.

The Complainant outlined that she loved her job with the Respondent until it was taken over. She stated that she subsequently got a job with another retailer and she is happy there.

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

In a letter from the WRC dated 28 January 2025, the Respondent was informed of the details of the Hearing to take place on 12 March 2025. The same letter also set out the procedure regarding postponement requests.

On 5 March 2025, JW Accountants emailed the WRC. They confirmed that Mr. Joseph Walsh was appointed Liquidator of the Company (the “Liquidator”) on 7 September 2023, by Order of Mr. Justice Quinn of the High Court. They further confirmed that as this complaint relates to matters which predate the Liquidator’s appointment, he is not familiar with the background to the complaint and therefore is not in a position to attend or assist in the Hearing.

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

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 leaveyear 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 cessar 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 submitted her Complaint Form to the WRC on 4 July 2023. In accordance with section 41(6) of the Workplace Relations Act 2015, the cognisable period for this complaint runs from 5 January 2023 until 4 July 2023.

It was the Complainant’s uncontested evidence that on cessar of employment, she had accrued 44 hours of annual leave. The Complainant provided her contract of employment which indicates, inter alia, that; she was paid €11.50 per hour; her normal band of working hours was 21 – 26 hours per week; additional hours may be required; and that she received four week’s annual leave, pro rata, up to a maximum of 39 hours per week.

It was the Complainant’s uncontested evidence that she took one week’s holiday in May 2022 and that she took another week’s holiday in October 2022.

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) and section 20 (1)(c)(ii) of the OWTA apply and so the leave accrued by the Complainant during the previous leave year can also be taken into account. The Complainant outlined that she worked approximately 30 hours per week and so on a pro rata basis, it appears that she was entitled to approximately three weeks’ annual leave. From 1 April 2022 until 31 March 2023, the Complainant accrued three weeks of annual leave. During this time, she took two weeks of annual leave in May and October 2022, resulting in one week of annual leave or 39 hours of annual leave remaining. The Complainant accrued a further two days or 8 hours, approximately, of annual leave from 1 April 2023 until end May 2023. In the circumstances, I find that that this complaint is well-founded and that on termination of her employment, the Complainant had accrued approximately 47 hours of outstanding annual leave. I note that according to her contract of employment, the Complainant was paid €11.50 per hour. Therefore, she was owed approximately €541 for outstanding annual leave.

I also 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 €541 gross (approximately 47 hours of pay) for the financial loss which the Complainant suffered; and

·         The Respondent to pay the Complainant compensation in the amount of €690 (approximately two weeks of pay) for the breach of the Complainant’s statutory rights.

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

For the reasons set out above, I find the complaint well founded and order the following:

·     The Respondent to pay the Complainant €541 gross (approximately 47 hours of pay) for the financial loss which the Complainant suffered; and

·     The Respondent to pay the Complainant compensation in the amount of €690 (approximately two weeks of pay) for the breach of the Complainant’s statutory rights.

Organisation of Working Time Act 1997, Annual Leave.