Complainant

Respondent

Parties

Aisling  Byrne

 Midland Animal Care Ltd

Representatives

None

None

Act

Complaint Reference No.

Date of Receipt

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

CA-00073334-001

10/07/2025

The Complainant was on sick leave from 4th May 2023 until the cessation of her employment on 15th February 2025.  The Complainant contends she did not receive holiday cesser pay for 2023, 2024 and 2025.  At the adjudication hearing, the Respondent accepted that holiday pay is owing to the Complainant.

The Complainant earned €2,890.85 net per month.  She contends she accrued statutory annual leave, public holidays and contractual leave during her absence on sick leave between 4th May 2023 and 15th February 2025.  As per the terms of the company Sick Pay Scheme, she was paid in full for the first 13 weeks of her sick leave.  In addition to statutory annual leave, the Complainant outlined that she is entitled to 5 company leave days and 2 company privilege days (Good Friday and 27th December) each year.  The Complainant contends that she met with Mr Kenny and asked for cesser holiday pay and was told by Mr Kenny “well Aisling, you know my views on that, you can take a run and jump.  I’m not paying for that”. 

The Complainant contends she is due holiday pay as follows:

2023: 20 leave days, 6 public holidays; and 1 privilege day (27th December 2023).  She contacted Mr Kenny at the end of 2023 regarding her holiday entitlements and she received €330, which the Complainant contends is not the correct amount owing.

2024: 25 leave days; 10 public holidays; and 2 privilege days.

2025: 2 leave days and 1 public holiday.

Mr Kenny submitted that the Complainant was treated fairly and was paid for the first 13 weeks of her sick leave.  Mr Kenny outlined that he assumed the Complainant would be returning to work and would take any leave accrued.  Mr Kenny submitted that he accepts payment is due to the Complainant as outlined by her in the hearing, but he is aggrieved that the Complainant or her union representative did not request cesser holiday pay before referring the complaint to the WRC.  Mr Kenny confirmed to the hearing that there is no policy regarding forfeiting non-statutory leave accrued but not taken on termination of employment.

Relevant Law

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

“. . . any sums payable to the employee by the employer in connection with his employment, including—

(a) . . . any holiday . . . pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise . . . . ”

Section 5 of the 1991 Act provides:

“(1) An employer shall not make a deduction from the wages of an employee . . .  unless—

(a) the deduction . . . is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction . . . is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it . . .

(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee, then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion . . . . ”

Section 6 of the 1991 Act provides:

“ (1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 4C or 5 as respects a deduction made by an employer from the wages . . . of an employee  . . . that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding—

(a) the net amount of the wages . . .  (after the making of any lawful deduction therefrom) that—

(i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or

(ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment,

or

(b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount . . . . ”

The High Court in Marek Balans v. Tesco Ireland Limited [2020] IEHC 55, outlined that when considering a complaint under the 1991 Act, it must first be established the wages which were properly payable before considering whether a deduction had been made. 

Section 2(1) of the Organisation of Working Time Act, 1997 (“the 1997 Act”) defines a ‘leave year’ as a year beginning on any 1st day of April.

Section 19 of the 1997 Act provides:

“(1)  . . .  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” (emphasis added).

Section 19 of the 1997 Act further provides:

“(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 . . .

(6) References in this section to a working week shall be construed as references to the number of days that the employee concerned usually works in a week.”

Section 20 of the 1997 provides:

“(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 . . . (c) to the leave being granted . . . (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.

(2) The pay in respect of an employee’s annual leave shall . . . (b) be at the normal weekly rate or, as the case may be, at a rate which is proportionate to the normal weekly rate . . .

(4) In this section “normal weekly rate” means the normal weekly rate of the employee concerned’s pay determined in accordance with regulations made by the Minister for the purposes of this section.”

S.I. No. 475 of 1997 Organisation of Working Time (Determination of Pay for Holidays) Regulations, 1997, provides:

“3. (1) The normal weekly rate of an employee's pay, for the purposes of sections 20 and 23 of the Act  . . .  shall be determined in accordance with the following provisions of this Regulation.

(2) If the employee concerned's pay is calculated wholly by reference to a time rate or a fixed rate or salary or any other rate that does not vary in relation to the work done by him or her, the normal weekly rate of his or her pay, for the purposes of the relevant sections, shall be the sum (including any regular bonus or allowance the amount of which does not vary in relation to the work done by the employee but excluding any pay for overtime) that is paid in respect of the normal weekly working hours last worked by the employee before the annual leave (or the portion thereof concerned) commences or, as the case may be, the cesser of employment occurs . . . .”

Section 21 of the 1997 Act provides:

“(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 . . .

(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 . . . .”

The ‘THIRD SCHEDULE: Entitlement under section 21 in respect of Public Holidays: Exceptions: Section 21’ provides:

“Each of the following are the cases mentioned in section 21 (5) of absence by the employee concerned from work immediately before the relevant public holiday:  . . .  such an absence, in excess of 26 consecutive weeks, by reason of . . .  any disease from which the employee suffers or suffered . . . .”

There are 10 public holidays as follows:

• New Year's Day (1 January)
• First Monday in February, or 1 February if the date falls on a Friday
• Saint Patrick's Day (17 March)
• Easter Monday
• First Monday in May
• First Monday in June
• First Monday in August
• Last Monday in October
• Christmas Day (25 December)
• Saint Stephen's Day (26 December)

Section 23 of the 1997 provides in relation to compensation on cesser of employment:

“(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 . . .

(5) In this section “appropriate daily rate” and “normal weekly rate” mean, respectively, the appropriate daily rate of the employee concerned’s pay and the normal weekly rate of the employee concerned’s pay determined in accordance with regulations made by the Minister for the purposes of this section.”

Section 41(6) of the Workplace Relations Act, 2015 provides that an Adjudication Officer must not entertain a complaint referred to the WRC if it has been presented after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

Findings

It was common case: (i) the Complainant worked 40 hours per week for which she earned €2,890.85 net per month; (ii) the Complainant’s leave entitlement each year was comprised of statutory annual leave, 5 company/non-statutory leave days and 2 company privilege days (Good Friday and 27th December); (iii) there is no company policy in relation to the manner in which company leave is accrued or in relation to the forfeiting of same if not taken; (iv) the Complainant was absent owning to illness from 4th May 2023 until the cessation of her employment on 15th February 2025; and (v) the Complainant did not receive holiday pay for leave accrued but not taken on the cessation of her employment.  At the adjudication hearing, the Respondent accepted that holiday pay is owing to the Complainant.

This is a complaint under the 1991 Act.  The complaint was presented to the WRC on 10th July 2025.  Therefore, the cognisable period for the complaint is 11th January 2025 to the 10th July 2025.  As per Balans, it must first be established the wages (which include “any holiday pay”) which is properly payable before considering whether a deduction had been made. 

Statutory Annual Leave

A ‘leave year’ for the purposes of the 1997 Act is a year beginning on 1st April.  Prior to the cessation of her employment, the Complainant worked 40 hours per week, Monday to Friday.  She therefore worked more than 1,365 hours per leave year (40 x 52 = 2080 hours).  Accordingly, as per the provisions of s. 19(1)(a) of the 1997 Act, the Complainant is entitled to 4 of her working weeks as annual leave each leave year (20 annual leave days per leave year).

The Complainant was absent on sick leave from 4th May 2023 until the cessation of her employment on 15th February 2025.  Certified absences due to illness are regarded as working time for the purposes of s. 19 of the 1997 Act.  As per the provisions of s. 20(1)(c)(iii) of the 1997 Act, where an employee is unable to take annual leave due to certified illness, the leave may be granted within the period of 15 months after the end of that leave year.  The Complainant did not return to work prior to the cessation of her employment on 15th February 2025 and therefore was unable to take annual leave accrued during the leave year 1st April 2023 to 31st March 2024, and 1st April 2024 to 15th February 2025 (the date she left her employment).  Section 23(1)(a) of the 1997 Act provides that where an employee ceases to be employed and the whole or any portion of leave remains to be granted to the employee, the employee must be compensated for the loss of that annual leave of an amount equal to the normal weekly rate of pay that she would have received had she been granted that annual leave.

The Complainant’s employment ended within the first 12 months of the period of 15 months of the annual leave year ending 31st March 2024, therefore in accordance with s. 23 (1)(b)(iii)(I) and (II) of the 1997 Act, I can have regard to the current leave year (1st April 2024 to 31st March 2025) and the leave year immediately preceding the current leave year (1st April 2023 to 31st March 2024).   I am satisfied the Complainant was entitled to 20 annual leave days for the leave year 1st April 2023 to 31st March 2024.  I calculate the Complainant is entitled to pro-rata 18.4 days annual leave for the leave year 1st April 2024 to 15th February 2025.   Accordingly, the Complainant accrued 38.4 days annual leave, and in accordance with s. 23(1) of the 1997 Act, the Complainant is entitled to compensation for the loss of that annual leave at an amount equal to her normal weekly rate of pay that she would have received had she been granted that annual leave.  I calculate the Complainant’s daily rate of pay to be circa €133.42 net (net monthly pay = €2,890.85 x 12 = €34,690.20 PA/52 weeks = €667.12 net per week/5 = €133.42 net daily).  I am satisfied that cesser pay of €4,793.33 (€5,123.33 less €330 already received), being holiday pay for 38.4 days annual leave accrued but not taken on cessation of employment was properly payable to the Complainant on 15th February 2025.  I find the failure to pay the Complainant €4,793.33 on 15th February 2025 constitutes an unlawful deduction for the purposes of the 1991 Act.

Public Holidays

The Complainant contends payment for public holidays on cessation of her employment were properly payable as follows:

2023: 6 public holidays

2024: 10 public holidays

2025: 1 public holiday

Section 21(1) of the 1997 Act does not apply to an employee who is absent in excess of 26 consecutive weeks by reason of any ‘disease’ from which the employee suffered or suffered from work immediately before a public holiday.  Thus, after 2nd November 2023, the Complainant was no longer statutorily entitled to payment for public holidays during her absence.  Therefore, for the purposes of the 1991 Act, payment for public holidays after this date were not properly payable to the Complainant.  Accordingly, there was no contravention of the 1991 Act with respect to this element of the complaint.

With respect to the claim for public holidays accrued prior to 2nd November 2023, a complaint of an alleged contravention of the 1991 Act must be presented to the WRC within 6 months of the date of the alleged contravention.  As noted above, the cognisable period for this complaint is 11th January 2025 to 10th July 2025.  Accordingly, the claim for public holidays prior to November 2023 is out of time and accordingly, I have no jurisdiction with respect to this element of the complaint.   

Section 23(2) of the 1997 Act provides that where an employee ceases to be employed during the week ending on the day before a public holiday and that employee has worked for the employer during the 4 weeks preceding that week, the employee must be compensated for the public holiday.  The Complainant’s employment ended on 15th February 2025.  A public holiday fell on 3rd February 2025.  I am satisfied the Complainant did not cease to be employed during the week ending on the day before a public holiday.  In any event, the employee did not work during the relevant 4 weeks.  Therefore, for the purposes of the 1991 Act, payment for a public holiday in 2025 as claimed for by the Complainant, was not properly payable to the Complainant.  Accordingly, there was no contravention of the 1991 Act with respect to this element of the complaint.

Contractual/Non-Statutory Leave

Wages for the purposes of the 1991 Act includes “any” holiday pay.  The Complainant contends she is entitled to payment for the following:

2023: 1 privilege day (27th December 2023). 

2024: 5 company leave days and 2 privilege days (Good Friday and 27th December 2024).

2025: 2 leave days.

I note the company leave year runs from 1st January to 31st December each year.  This complaint under the 1991 Act was presented to the WRC on 10th July 2025.  An Adjudication Officer must not entertain a complaint referred to the WRC if it has been presented after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.  Accordingly, the claim for payment for the privilege day of 27th December 2023, Good Friday 2024 and 27th December 2024 are out of time.  The claim with respect to 5 company days accrued but not taken by 31st December 2024 is also out of time as it too was presented after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

I calculate that from 1st January 2025 until 15th February 2025 the Complainant accrued .6 of a company leave day.  I am satisfied this payment was properly payable on 15th February 2025.  As this complaint was presented to the WRC on 10th July 2025, this element of the complaint is in time.  I find the failure to pay the Complainant €80.01 for .6 of a company day accrued but not taken on termination of employment on 15th February 2025 constitutes an unlawful deduction for the purposes of the 1991 Act.

I decide this complaint under the Payment of Wages Act, 1991 is well-founded in part, and I direct the Respondent to pay to the Complainant net compensation of €4,873.34.

Unlawful deduction.  Annual Leave. Public Holidays. Contractual Leave. Privilege days.