Complainant

Respondent

Parties

Tieson  Sam

Bridhaven Nursing Home

Representatives

Appeared In Person  

Jack Lundy Peninsula Business Services Ireland

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-00074763-001

25/08/2025

On 25 August 2025, the Complainant submitted a complaint following the conclusion of his employment with the respondent.

He submitted that he had not been paid correctly for his annual leave and had been informed that he had 9 days annual leave outstanding, yet he was only paid for 2.9 days.

“I would like to get my payment what I deserve to get “A pay slip dated 3 July 2025 was exhibited.

On 3 September 2025, the Respondent was placed on notice in the case. Peninsula came on record.

On 3 June 2026, both parties were invited to attend a hearing on the matter scheduled for 13 July 2016 at 10 am in Cork.

The Complainant requested an Interpreter in the Mayalam language. Ninan Thomas presented an interpreter online and availed of the affirmation to accompany the interpretation.

As the complainant had filed his written submission as requested, I invited a responding submission from the Respondent.

At the conclusion of the hearing, the complainant was requested to provide records of his permission to work in Ireland, reflective of the period of the claim made. He did this very promptly, post hearing. These were shared with the Respondent, who had nothing further to add.

The Complainant, an Indian national, commenced work at the Respondent Nursing home on 21 February 2021 and left the employment on 16 June 2025. He worked a disputed 38.5 hr week in return for €27,000 base salary per annum.

The Complainant is seeking to receive payment for annual leave accrued but untaken at the time of the conclusion of his employment. He claimed 9 days payment

I have worked many days extra due to staff shortage and my holidays were carried over to the next year in 2023. I will need to talk to my solicitor about this. I am thinking of proceeding this legally. I thought of emailing you prior to that. I was not in the country, that’s why I could not contact you earlier.

Evidence of the Complainant:

The Complainant outlined that he had been a highly flexible employee during his tenure. He submitted that he had had deferred his access to annual leave during 2023 when he was covering for gaps in recruitment. This happened again in 2024. He told the hearing that “I was always prepared to do extra “.

The Respondent permitted him to defer annual leave.

Mr Sam submitted that he was unclear on how the annual leave system worked in principle. He was certain that as he resigned to take up another position, he was owed 9 days annual leave. He availed of one day during his notice period.

When requested to share how annual leave operated, he outlined that an application was submitted two weeks before annual leave was needed. There was no specific application form, but the respondent operated a One touch app.

During cross examination, the complainant initially accepted that he had carried over the leave detailed in the respondent submission but then changed his mind. He disputed that his evidence was inconsistent.

First, he said that there was no record of carried over leave, secondly, he stated that it was set out on the Epi system.

He was unclear on the sick leave records marked in pink colour.

The Complainant was steadfast that he had been informed by Human Resources and Finance that he was owed 9 days’ pay on the conclusion of his employment. He did not accept that a mistake had occurred.

He clarified that the One touch system (app) had been installed in 2024. He did not receive annual leave on the over time he worked. He was not in apposition to quantify the overtime he had worked.

Mr Sam concluded that he had done everything to help the respondent yet was owed 8 days’ pay, revised from 9 days in outstanding annual leave.

The Respondent operates a Nursing home and has denied the claim.

The Respondent submitted a chronological log of how annual leave was given to the complainant. The annual leave year operated January – December.

1 The Complainant carried over 85 hrs accrued annual leave from 2023. Availed of 77 hrs of annual leave.

2 Balance of 58.6 hrs carried over to 2024 /2025 holiday year.

3 The accrued hours from 2024 were added and the total stood 212.6 hrs. In 2024/2025, he availed of 231 hrs leave, leaving a negative balance of 18.4 hrs.

The Complainant resigned his position on 16 June 2025. The negative balance of 18.4 hrs was adjusted from his record. The Complainant went on to take 11 hours annual leave in the final weeks of his employment, leaving a closing balance of 2.11 for which he was paid on his final pay slip.

The Complainant raised his grievance some 3 weeks after he left employment. He was provided with a composite breakdown of the records retained, all of which were exhibited in the respondent booklet shared with the complainant. An email thread accompanied this.

The Respondent has disputed any liability for outstanding annual leave.

The Respondent argued that the complainant had benefitted from his full statutory annual leave as provided for in his contract of employment and in keeping with the provisions of Section 19 of the Act.

Mr Lundy outlined that the complainant had been informed that the respondent had made a regrettable error in the calculations of the complainants cessor pay on the conclusion of his employment. The Respondent had engaged fully and demonstrated the context and background of the mistake, however, the compli9anant has not accepted that an error has occurred.

The Annual leave records had been validated within the business prior to exhibiting the records.

The Complainant ahd not activated a grievance in seeking to resolve the matter

Evidence of Ms Siobhán Cullen, Human Resources by oath:

Ms Cullen outlined the One Touch app system operated as a record for rosters, annual leave and sick leave. This, in turn informed pay roll run at the business.

Ms Cullen was a recent arrival at the business and was not present in January 2024.

She was relying on the records compiled by the larger system.

Mr Lundy submitted that the claim made was not well founded.

I have been requested to reach a decision in this highly disputed issue on whether the complainant was entitled to receive 8-9 days of accrued but untaken annual leave as cessor pay when he changed jobs in June 2025.?

In reaching my decision, I have listened carefully to the evidence given at hearing. I have read both parties written submissions.

I am satisfied that the Complainant had permission to work in Ireland.

My jurisdiction in this case is derived from Section 23 of the Organisation of Working Time Act, 1997.

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,

(ii) in relation to a cessation of employment of an employee to whom subparagraph (ii) of the said paragraph (c) applies, that occurs during the first 6 months of the current leave year—

(I) the current leave year, and

(II) the leave year immediately preceding the current leave year,

(iii) in relation to a cessation of employment of an employee to whom subparagraph (iii) of the said paragraph (c) applies, that occurs during the first 12 months of the period of 15 months referred to in the said subparagraph (iii) —

(I) the current leave year, and

(II) the leave year immediately preceding the current leave year,

or

(iv) in relation to a cessation of employment of an employee to whom subparagraph (iii) of the said paragraph (c) applies that occurs during the final 3 months of the period of 15 months referred to in the said subparagraph (iii) —

(I) the current leave year, and

(II) the 2 leave years immediately preceding the current leave year.]

Section 19 sets out the entitlement to statutory annual leave

Entitlement to annual leave.

19.— (1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

(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.

[(1A) For the purposes of this section, a day that an employee was absent from work due to illness shall, if the employee provided to his or her employer a certificate of a registered medical practitioner in respect of that illness, be deemed to be a day on which the employee was—

(a) at his or her place of work or at his or her employer’s disposal, and

(b) carrying on or performing the activities or duties of his or her work.

(2) A day which would be regarded as a day of annual leave shall, if the employee concerned is ill on that day and furnishes to his or her employer a certificate of a registered medical practitioner in respect of his or her illness, not be regarded, for the purposes of this Act, as a day of annual leave.

(3) The annual leave of an employee who works 8 or more months in a leave year shall, subject to the provisions of any employment regulation order, registered employment agreement, collective agreement or any agreement between the employee and his or her employer, include an unbroken period of 2 weeks.

The contract of employment/ statement of terms exhibited by the Respondent was signed by the complainant in December 2021. The Contract/ statement of terms exhibited by the Complainant was signed on 10 February 2021.

Section 9 of that contract is shared in both versions

9.1 pro rata 20 days

9.3 rules for carrying over annual leave

9.4 pro rata during time of resignation.

9.6 rules on availing of annual leave during notice.

On a careful reading of this section, I found it answered most of the disputed issues in this case.

I returned to it on a number of occasions and asked the rhetorical question, why an apparently robust clause such as section 9 did not resolve this matter prior to a WRC hearing.?

As I considered the evidence, I could see that the complainant was not fully informed on how the annual leave day corresponded to a working day. While 20 days leave was his annual entitlement pro rata during the leaving year, he did not have a working knowledge of how the company calculated his 20 days.

He fully acknowledged that he has access to the work app which in turn informed pay roll run. I was given extracts of that app and could identify two annual leave days, some uncertified sick leave and post conclusion of employment annual leave applied to the complainant during 2025.

The problem in this case is that the years where the complainant did not avail of leave so as to provide cover were not documented to him in real time, therefore a certain level of confusion and possibly some mistrust accompanied their status.

I am satisfied that the complainant availed of his accrued annual leave on the conclusion of employment. I cannot establish that he was owed 8 or even 9 days on the conclusion of employment and I find that he should accept the respondent contention that this was an error and it should be forgiven as such.

This employment ha snow ended and is unlikely to be restarted.

I cannot establish a breach of Section 19 or 23 of the Act.

I found a blurred communication on the carryover of leave, which veered outside the stated spirit of Section 9 of the Statement of Terms from 2021.

However, the end result was that the annual leave allocated to the complainant adhered to his annual entitlement, albeit administered in a fragmented fashion over the last three years of his employment. I accept that he denied himself leave to assist the employer.

However, his expectation of  receiving 9 days was clearly a mistake, and the complainant should forgive the error made.

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 in accordance with Sections 19 and 23 of the Act.

I cannot establish a breach of Section 19 or 23 of the Act.

I found a blurred communication on the carryover of leave, which veered outside the stated spirit of Section 9 of the Statement of Terms from 2021.

However, the end result was that the annual leave allocated to the complainant adhered to his annual entitlement, albeit administered in a fragmented fashion over the last three years of his employment. I accept that he denied himself leave to assist the employer. He did catch up with that leave .

However, his expectation of his receiving 9 days was clearly a mistake, and the complainant should forgive the error made.

The claim is not well founded.

Paid annual leave, cessor pay. Section 23 Organisation of Working Time Act, 1997