Complainant

Respondent

Parties

Adam  Pais

KartWorld Adventure Centre Ltd. T/A Adventure Park at Kart World

[Amended]

Representatives

Self-represented

Self-represented

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-00066680-001

14/10/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00066680-002

14/10/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00066722-001

16/10/2024

The Complainant worked for the Respondent company on a part-time basis, initially as a games/paintball marshall, and was then moved to maintenance duties.

The Complainant filed three complaints against his former employer, one pertaining to the calculation of annual leave (OWTA) which he submits was not paid, one pertaining to an alleged unilateral change in the terms of  his employment and one alleging unfair dismissal contrary to the Unfair Dismissals Act 1977.

The Respondent denies the Complainant’s claims. It submits that annual leave was ‘rolled into’ the hourly rate received by the Complainant. It submits that the contract issued allows for a change of duties, insofar as one occurred, and it denies dismissing the Complainant, unfairly or at all.

The Respondent was represented by Mr. David Walsh, Company Secretary.

The Complainant represented himself with assistance from his partner, Ms. Shannon Nolan, as a reasonable accommodation.

The Adjudication Officer enquired as to the presence of any ‘special circumstances’ in relation to the hearing or anonymisation. None were identified by either party.

The Complainant was assisted in the presentation of his case by his partner, Ms. Shannon Nolan, as a  reasonable accommodation.

Three complaints were filed – one pertaining to annual leave under the Organisation of Working Time Act 1997, one pertaining to an alleged unilateral change in the terms of the Complainant’s employment and one alleging unfair dismissal contrary to the Unfair Dismissals Act 1977.

The Complainant started working for the Respondent business in April 2023 and his employment concluded on 15th October 2024.

Ms. Nolan outlined, by way of opening submission, that the Complainant raised a grievance in relation to holiday pay. She submitted that there were discrepancies and that the employer’s response was that 8% (as per the OWTA) pertaining to annual leave was ‘rolled into the hourly rate.’ She said that she was unsure as to the exact amounts owed, but by her calculation, it was approximately  €662.73 pertaining to 2023 and €644 pertaining to 2024. She said that the employer had acknowledged an under payment of €598 euro, by correspondence dated 13th August 2024. [Adjudication Officer’s Note: Some of these acknowledged monies owed, pertain to an underpayment of the national minimum wage as the Complainant’s hourly rate.] The Complainant also acknowledges an outstanding loan in the amount of €250 owed to his employer.

In relation to his terms of employment, it was submitted that his job changed from paintball marshall to bin cleaner (maintenance).

It was submitted that these events were the build up to the Complainant’s dismissal – that he had queried the handling of annual leave, he had questions in relation to the 8% (rolled in), that they had tried to come to a resolution in the weeks that followed, that none was forthcoming, and the Complainant was called to the office and told to go upstairs and speak with his boss, by his boss’ daughter who also worked in the business. It is submitted that he asked another employee if he would attend with him – that employee declined. It is submitted that he did not wish to attend the meeting alone, due to a prior meeting which had occurred two weeks’ earlier and how that had been handled. The Complainant alleges that he was told to ‘just leave’ by his boss’ daughter, when he declined to go up the stairs to the meeting. It is submitted that when he said to his boss [words to the effect that] ‘your daughter has just fired me’, he was told ‘go on, so.’ There was no further contact from either person to the Complainant; and no contact from him to them.

At hearing, the Complainant, Mr. Pais, gave evidence on his own behalf.

He outlined that he started working for the Respondent business on a part-time basis in 2023, initially as a paint ball marshall, and that he was then moved to games. He said that things were fine for approximately three (3) months but then [named person] left, and there was no clear manager resulting in mistakes being made and everyone being blamed. He outlined that he was initially promised €11.50 per hour but was only paid €11. He outlined that he did not get any days off - no paid annual leave, no sick leave. He outlined that when he requested annual leave pay, he was told that it was contained within the hourly rate. He explained that when he took holidays, he received no pay that week. He said that he raised it on two occasions, at least, and then by formal letter.

In relation to the matter of dismissal, he explained that he submitted his complaints in relation to annual leave and a change in his terms and conditions to the WRC, on a Monday, and asked whether the other party would be aware, and was told that it would be aware ‘instantly.’

The Complainant said that he was then asked by his line manager on foot of a phone call from his boss’s daughter who also works within the business to go up to the clubhouse.

He said that he did not want to go to the office to his boss on his own, but was directed to do so.  He said that he was told to ‘just get out and go’. He said that he was dismissed.

He said that as he was leaving the building, his boss was entering and he told his boss ‘your daughter has just dismissed me’ and his boss said to him ‘okay, go.’ That was on 15/10/2024.

He said that he was due to work the next day. There was no further contact between the parties.

In terms of mitigation of losses, he outlined that he got a contract with Amazon for a six (6) week period. He said that he is currently looking for work - stewarding for events, security, general jobs. He said that he used to work in a kitchen. He said that he had a trial for a security company, working at a match. He said he has had no other interviews.

He outlined that he is in receipt of disability allowance (not jobseeker’s benefit).

On Cross examination, by Mr. David Walsh on behalf of the Respondent.

It was put to the Complainant that his contract of employment was like approximately fifteen (15) other people’s contracts who were working for the business.

In relation to the issue of pay, it was put to him that it was raised by the Complainant, and the company looked at it and reverted to him, by correspondence dated 13th August 2024, that the underpayment was calculated to be €598. It was put to him that there was no further correspondence in relation to it subsequent to September 4th.

It was put to the Complainant that his holiday hours entitlement was rolled into his hourly rate.

In terms of timeline, it was put to him that he was due to work on October 15th and did not turn up. It was put to him that there were previous occasions where he did not show up for work. The Complainant disputed this. He said: ‘I always contacted.’

It was put to the Complainant that he was not dismissed, that contrary to the Complainant’s submission, that on 15th October, the Respondent employer was not on notice of the WRC complaints he had filed on 14th October, that his evidence in relation to the purpose of the meeting was simply not correct. It was put to him that the employer, at that stage, had no knowledge of any complaint, that it received it a couple of weeks later.

It was put to him that he was asked to go up to his boss’ office, and that he refused to go. The Complainant agreed with that. He said that he was then told to ‘just go.’ The Complainant reiterated that he had been dismissed.

Mr. Walsh – Secretary for the Respondent

He submitted on behalf of the Respondent that the Complainant was ‘not dismissed, fired, let go, or any other description.’ He said that there were prior incidences of the Complainant not turning up for work. He characterised them as ‘frequent.’ He said that the Complainant was originally mostly in paintball, in games. He said the company had approximately twenty (20) employees at any one time, five (5) or six (6) permanent and the rest are allocated hours within the needs of the business.

He outlined that the business was still recovering from Covid-19. He said that they ran staff on a particularly tight basis and that someone texting at 9 am saying I’m not coming in today’ presented huge problems logistically. He said it was ongoing but came to a peak in early 2024. So, the employer assigned the Complainant to help in maintenance, in a bid to manage that.

He explained that the business provides things like packages for school tours. He said that if they received a text early in the morning in maintenance, it did not matter. He said that in maintenance, the Complainant could work more flexibly (no customer involvement in that work), that he was paid at the same rate, that he would get the same number of hours typically per week, approximately two (2) days.

He submitted that the business, having gone back through the figures, responded to the Complainant in August 2024 by email, setting out the figures; and that the Complainant said he would revert to the employer.

He said the figure the business identified was €598 owed to the Complainant minus the €250 loan outstanding owed to the employer.

In respect of the rolled up annual leave, he submitted that it was what the business did with all part- time employees. He submitted that ‘they all knew that was it’, that ‘with people working varying hours’, they were paid 8% [as per the Organisation of Working Time Act 1997]

The Adjudication Officer enquired of Mr. Walsh in relation to annual leave, i.e. how did staff access the time off element of annual leave? He stated that a named member of staff rosters the staff, and that at any stage for any of the staff, they would inform that person if they were unavailable to be rostered the following week. He said there was ‘no cap on unavailability.’

In relation to the Complainant, he said that he assumed he would probably ‘turn up on the Wednesday and I’d get to talk to him.’ He said, in August, there was a meeting, then the email, and the rate of repayment of the loan had to be worked out. He said that they had not heard further from the Complainant and suggested the reason was that the Complainant had filed WRC complaints in the interim. He said the company did not process anything further after that.

In relation to the issue about the change in duties, Mr. Walsh outlined that the Complainant did not attend work on a number of occasions. The Complainant had both personal and logistical difficulties during this time, including suffering a bereavement and a close family member experiencing a serious illness. Mr Walsh said that the employer ‘tried to be as helpful and as sympathetic as we could.’ He said that ‘the hours that he worked, and the days that he worked were flexible.’ A breakdown of the hours the Complainant was rostered to work was submitted.

In relation to the change in duties, the Complainant put it to Mr. Walsh that there was ‘no consultation’, that he was simply told ‘you’re on bins next week.’ The Complainant said that he asked to return to paintball, he said that he was told ‘no.’ Mr Walsh said that the decision was taken ‘in circumstances of [the Complainant’s] attendance at the time.’

Mr Walsh submitted, by way of closing submission, and in support of the company’s position that the Complainant was not dismissed, that he had not been the subject of any disciplinary action whatsoever. He submitted that the company uses an external HR company and pays annually for their services. He submitted that if the company were firing the Complainant, he would have taken advices from external HR. He said that this did not occur, that there were no written warnings, no disciplinary procedures, that his personal circumstances and the circumstances of his family members affected the Complainant’s availability. He further submitted that the Complainant’s car broke down on several occasions.

In relation to the ‘pay as you go’ approach to annual leave, he submitted that administratively, it is easier to manage. He said that the company ‘worked it on the basis  of you tell us that you’re not available and your marked off the roster, not rostered.’ He said that the impetus was to give people hours on as fair a basis as possible.

In relation to the €598 minus the outstanding balance on the loan, he said ‘that was to be discussed – you’ll see that in the emails.’

CA-00066680-001: Annual Leave under the Organisation of Working Time Act 1997

The Organisation of Working Time Act is underpinned by EU Directive. The purpose of annual leave is not simply payment, it is also time off,  both in support of health and safety at work, and in support of the employee’s family and social life. The Complainant did not receive paid time off. The employer’s approach to annual leave, done at least putatively for administrative ease, does not fulfil its obligations under the Organisation of Working Time Act 1977, with respect to annual leave.

I am guided in my approach to this complaint by the Labour Court case of Fasercourt V. O’Brien DWT0743, in the significance of annual leave as a social right, which in turn had regard to the applicable European Court of Justice (ECJ) jurisprudence, in particular the  joined cases of  C-131/04 C.D. Robinson-Steele V. R.D. Retain Services Ltd, C-257/04 Michael Jason Clarke V. Frank Staddon Ltd. and J.C. Caulfield and Ors V. Hanson Clay Products Ltd. ECR 1 0253. The Labour Court set out that, in those cases: ‘…the Court of Justice made it clear that the relevant obligation imposed on an employer under the Directive can only be met by paying an employee in respect of holidays at the time the holidays are taken. That decision is absolutely binding on this Court. Consequently the defence to the within claim relied upon by the Respondent is unsustainable in law.’

I therefore find that the legal obligation to provide paid annual leave cannot be discharged by rolling an element of holiday pay into a worker's basic pay rate. In line with the applicable directive (Directive 93/104/EC) and the applicable national legislation (OWTA), employers must pay workers for their annual leave at the time the leave is actually taken. I therefore note that any contractual arrangement purporting to authorise a composite rate is void to that extent – the Labour Court also referred to its own previous determinations, DWT 0043 O’Donnell V. Wolf Security [2001] ELR 136, and DWT017 Martin Tracey v Cementation (Ireland) Ltd., in that regard.

With respect to the Organisation of Working Time Act 1997 regarding the employer’s breaches in relation to paid annual leave, it falls to me to award an amount which is ‘just and equitable’ having regard to all the circumstances of the case, but not exceeding two years’ remuneration, and to provide an effective legal remedy, in that regard.

CA-00066680-002: Terms of Employment (Information) Act 1994 complaint: I find that this complaint is not well founded. I find that the contract provided to the Complainant allowed for flexibility in respect of the duties he was assigned to carry out. I therefore find that there has not been a material change to his contract of employment such that it would necessitate the provision of a new contract. I note the circumstances in which this occurred – that the Complainant’s previous duties were customer-facing and time-bound, but that he was not in a position to attend on a number of occasions when rostered to do so due to a combination of personal circumstances; and the company assigned the Complainant to duties that were not time-specific and not customer-facing, in a bid to address that difficulty from a business needs perspective, while seeking to support him. I note that the Complainant objected to that change in his assigned duties, especially in the context of his personal circumstances.

CA-00066722-001: Unfair Dismissal complaint contrary to the Unfair Dismissals Act 1977. I find that the Complainant was not dismissed, unfairly or otherwise. The Complainant’s fear in relation to attending the meeting he was asked to attend with the business owner in relation to the issues he had raised with respect to annual leave, appears to have been based on the misapprehension that the Respondent had already received a copy of his first two WRC complaints, filed the previous day 14/10/2025, at that point. When the Complainant refused to go up the stairs to speak with his boss, he says he was told to ‘just go, so’, he then interpreted that as a dismissal on foot of the fact he had raised WRC complaints. He went home on 15/10/2025 and did not return to work. He filed a WRC complaint alleging unfair dismissal on 16/10/2025. In fact, the Respondent had not received sight of those initial complaints at that point. Having reviewed the case file, the Respondent was notified of the third complaint, alleging unfair dismissal on 21/10/2025, and then subsequently notified of all three complaints on 23/10/2025. Notification of complaints issues by ordinary post, as correspondence is by ordinary post unless and until the party consents to email correspondence. I am therefore satisfied that on 15/10/2025, the Respondent was not on notice of the WRC complaints filed on 14/10/2025.

The Complainant subsequently did not show up for work or make contact with his employer. He  then filed a further WRC complaint alleging unfair dismissal contrary to the Unfair Dismissal Act 1977. I find that he was not dismissed, unfairly or otherwise.

CA-00066680-001 – I find that this complaint is well founded. I direct the Respondent to pay the Complainant €2,000 compensation with respect to the failure to comply with the requirements of the Organisation of Working Time Act 1997, with regard to annual leave, within 42 days of the date of this decision.

CA-00066680-002: I find that this complaint is not well founded.

CA-00066722-001 – I find that the Complainant was not dismissed, unfairly or otherwise. I therefore find that this complaint is not well founded.

Annual Leave; Rolled up Annual Leave; Organisation of Working Time Act; Terms of Employment; Unfair Dismissal;