Complainant awarded €1,500 due to unlawful delay in holiday pay
Key Learnings:
The Organisation of Working Time Act 1997 sets out specific requirements regarding annual leave for Employees. Under the Act, Employers must consult with Employees (or their trade unions) at least one month in advance before determining the dates for annual leave. If the Employer does not consult within this timeframe, the Employer must consider the Employee’s preferred dates for taking leave.
Employees are required to take their annual leave within the leave year to which it applies. However, with the Employer’s consent, the leave can be carried over and taken within six months of the following leave year. In cases where the Employee is unable to take all or part of their leave due to a certified illness, the Act allows the outstanding leave to be taken within 15 months after the end of the leave year in question.
Annual leave pay must be calculated at the Employee’s normal weekly rate of pay and must be paid in advance of the holiday period.
If an Employee’s employment is terminated and they have unused annual leave, the Employee is entitled to compensation for any untaken leave. This compensation should be calculated either at the Employee’s normal weekly rate of pay or, if appropriate, at a pro-rata rate based on the number of leave days not taken.
Background:
The Complainant started working as a driver for the Respondent on December 10, 2022, working 39 hours per week and earning €729.19 gross weekly. In June 2023, he requested two weeks of annual leave starting from June 4, but did not receive his holiday pay in advance, preventing his planned trip. When he asked to reschedule the leave, the Respondent denied the request, explaining that wages, including holiday pay, were issued on a back-week basis. The Complainant argued that this practice violated Section 20(2) of the Organisation of Working Time Act, 1997, and relevant regulations. He sought compensation for non-compliance and also raised concerns over the calculation of his holiday pay, which has since been corrected. He cited case ADJ-00026200, involving a similar breach, in support of his claim for compensation.
The Respondent admitted that their policy in June 2023 of paying all Employees, including holiday pay, on a back-week basis did breach Section 20(2) of the Organisation of Working Time Act, 1997. However, they explained that a collective agreement with the trade union had since been implemented, allowing Employees to request holiday pay in advance. The Respondent confirmed that the Complainant took his leave as planned and continued to receive weekly payments during this period, without suffering any financial loss. Additionally, the Respondent’s payroll system calculated holiday pay based on the average earnings over the previous 13 weeks, as specified in the Complainant’s contract. An error was found where a daily €16.08 “Depot Payment” had been excluded from the holiday pay calculation, but this issue has been resolved.
Summary of Complainant ’s Case:
The Complainant, under affirmation, testified that he began working for the Respondent as a bus driver on December 10, 2022. In June 2023, he applied for two weeks of annual leave, set to begin on June 4, 2023. However, the Complainant did not receive his holiday pay in advance, preventing him from proceeding with his planned travel. He requested to reschedule his annual leave, but this request was denied. He was informed that the Respondent’s policy was to pay wages, including holiday pay, on a back-week basis. The Complainant argued that this practice violated Section 20(2) of the Organisation of Working Time Act, 1997, as well as S.I. No 475/1997, which outlines the regulations for determining holiday pay.
As a result, the Complainant was seeking compensation for the Respondent’s failure to comply with the provisions of the Act.
The Complainant also referenced case ADJ-00026200, asserting that it was relevant to his situation, as compensation was awarded to the Employe in that case due to a similar violation of the Act.
Additionally, the Complainant argued that the Respondent’s method of calculating holiday pay was incorrect and in breach of Section 20(2)(b) of the Organisation of Working Time Act, 1997, and did not adhere to the provisions of S.I. No. 475/1997, Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997, 3(3)(a).
During the hearing, the Complainant stated that he was unaware of the collective agreement mentioned by the Respondent, as he was not a member of the trade union. He also acknowledged that the issue regarding the miscalculation of holiday pay had since been resolved and that he was no longer seeking compensation in relation to this matter.
Summary of Respondent’s Case:
The Respondent’s representative explained that when the Complainant requested his annual leave in June 2023, the policy at the time was to pay all Employes, including holiday pay, on a back-week basis. The Respondent acknowledged that this practice was in violation of Section 20(2) of the Organisation of Working Time Act, 1997. However, they also noted that a recent collective agreement with the trade union now allows any Employe to request and receive holiday pay in advance.
A representative for the Respondent, testifying under affirmation, confirmed that the Complainant did take his annual leave as requested and continued to receive weekly payments during that period. She further stated that the Complainant did not suffer any financial loss or other detriment as a result of the situation.
Regarding the calculation of holiday pay, the Complainant’s contract specifies that “payment for a week’s holiday will be based on the average rostered hours on your personal rota worked over the last 13 weeks.” The Respondent uses a system called “DAS” to track each Employe’s personal rota, and this data is then used by the payroll system to determine holiday pay entitlement based on the average hours worked in the previous 13 weeks.
The Respondent also outlined the various allowances paid to bus drivers in their written submission. At the hearing, it was confirmed that one such allowance, known as the “Depot Payment”—a daily payment of €16.08 for drivers required to stay in the depot during certain shifts—had not been included in the holiday pay calculation. This issue has since been resolved.
Findings and Conclusions:
Section 20(2) of the Organisation of Working Time Act, 1977, states:
“(2) Pay for an Employee’s annual leave must:
(a) be given to the Employee before taking the leave,
(b) be at the normal weekly rate or an appropriate rate, and
(c) […].”
It is agreed that the Complainant did not receive advance payment for his two weeks of annual leave in June 2023. This was due to the Respondent’s policy of paying all Employees on a back-week basis at that time. However, with the new collective agreement in place, this issue has been addressed. The Respondent confirmed during the hearing that all Employees would be informed of this change, especially since the Complainant (and possibly others) are not part of the trade union.
Regarding the calculation of holiday pay:
Section 3 of S.I. No. 475/1997 – Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997 states:
“3. (1) The normal weekly pay for an Employee, for the purposes of sections 20 and 23 of the Act, is determined as follows:
(2) If an Employee’s pay is based entirely on a fixed rate, salary, or any other rate that does not change based on work done, the normal weekly rate will be the total amount paid for the regular weekly hours worked before the annual leave starts, excluding any overtime pay.”
The Respondent has confirmed that the “Depot Pay” will now be included in the holiday pay calculation, which the Complainant agrees resolves this issue.
On the topic of compensation:
Section 27 of the Organisation of Working Time Act gives an Adjudication Officer the authority to:
“(a) declare if the complaint was or was not well founded,
(b) require the Employer to comply with the relevant provisions,
(c) require the Employer to pay the Employee a fair amount of compensation, up to a maximum of two years’ salary related to the Employee’s employment.”
This complaint is valid, and the Respondent has confirmed compliance with the Act and S.I. No. 475/1997. Therefore, there is no need to enforce further compliance.
The Respondent argues that the Complainant has not suffered any detriment due to this issue. However, the Act does not require a Complainant to show they experienced detriment. The Adjudicator required the Respondent to pay the Complainant €1,500 in compensation.
Decision:
Section 41 of the Workplace Relations Act 2015 requires that the Adjudicator make a decision in relation to the complaint(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
The Adjudicator decided that this complaint is well founded, and ordered the Respondent to pay the Complainant compensation in the sum of €1,500 within 42 days of the date of this decision.
Complainant awarded €30,000 in mismanaged harassment grievance process
Key Learnings:
- Develop and Enforce a Comprehensive Harassment Policy: Employers are required to establish a clear policy addressing harassment and discrimination. This policy must define harassment, including sexual harassment, outline reporting procedures, and detail the steps for conducting thorough investigations.
- Provide Regular Training on Harassment Policies: To promote awareness and create a safer workplace environment, Employers should conduct regular training sessions for both Employees and management on the company’s harassment policies and reporting procedures.
- Conduct Timely Investigations of Complaints: Upon receiving a complaint, Employers must promptly initiate an investigation. Delays or neglect in addressing complaints can exacerbate the situation and expose the Employer to legal risks, as evidenced in previous cases.
- Ensure Objectivity in Handling Allegations: Employers must treat all complaints with seriousness and impartiality. Even in cases where informal resolution is considered, the complainant’s request for formal action should be respected and appropriately addressed.
- Treat Threats with Urgency: Employers must take any threats made against an Employee following a harassment complaint with the utmost seriousness. Swift and decisive action, including disciplinary measures, is critical to safeguarding the Employee and reducing potential legal liability.
- Maintain Detailed Documentation: Employers should keep thorough records of all complaints, investigations, and actions taken. Proper documentation not only demonstrates compliance with legal obligations but also protects the Employer in the event of future disputes.
- Offer Support to Employees: Employers should provide necessary support to complainants, including access to counselling services and alternative work arrangements, ensuring they feel secure and respected in the workplace.
Background:
The Complainant accused her Employer of workplace gender discrimination under Section 77 of the Employment Equality Act (EEA) 1998, stating that over an extended period, she endured harassment, sexual harassment, and sexual assault by a male colleague. Despite repeatedly raising complaints, including reports from other coworkers and claims of threats to her life, no investigation or action was taken by her Employer. Even after lodging a formal complaint, the situation was not addressed, and the harassment and threats continued to escalate. Ms. Ahearne argued that the Respondent failed to implement a harassment policy and did not meet their legal duty to protect her. She referred to legal precedents that highlighted how harassment and victimization under the EEA are assessed subjectively. She sought redress, holding the Respondent responsible for neglecting to prevent or resolve the discrimination and retaliatory behaviour that followed her complaints.
On the other hand, the Respondent claimed that the Complainant’s case was time-barred under Section 21(2) of the Equal Status Act 2000, as she did not notify them within the required two-month period. The incident occurred on May 19, 2020, but the Complainant did not submit her notification until October 5, 2020. The Respondent stated they only became aware of the allegations following an unrelated dispute and that the Complainant had earlier declined to formally pursue the issue. They denied all accusations of harassment and victimization, arguing that her claim was without legal merit and was filed too late.
Summary of Complainant’s Case:
The Complainant alleges workplace discrimination based on gender. She experienced harassment, sexual harassment, and sexual assault by a male colleague over an extended period. Despite multiple complaints, including one from another colleague in 2019 about harassment affecting several female staff members, her Employer took no action. When the Complainant filed a formal complaint regarding the harassment and threats to her life, her Employer again failed to investigate. Following her complaint, the colleague threatened to kill her and her family.
The Complainant filed a complaint under Section 77 of the Employment Equality Act 1998 (EEA), citing victimization, harassment, and sexual harassment as forms of gender-based discrimination.
According to Section 14(A)7 of the EEA 1998, harassment refers to any unwanted conduct related to discriminatory grounds, while sexual harassment includes unwanted verbal, non-verbal, or physical conduct of a sexual nature that violates a person’s dignity and creates a hostile or offensive environment.
The Complainant argued that the test for harassment is subjective, referencing *Nail Zone Ltd v. A Worker* (EDA 1023), which states that harassment occurs if the conduct has the effect of violating a person’s dignity, whether or not it was intended.
In her case, the harassment and sexual harassment involved verbal comments and assault. She cites A Complainant v. A Contract Cleaning Company (DEC-E2004-068) to support her claim. Furthermore, she contends that the Respondent lacked a harassment policy, relying on precedents like Catlan Trading v. McGuinness and An Employer v. A Worker (EDA0916), where the absence of such policies contributed to the Employer’s liability.
The Complainant also claimed victimization under Section 74(2) of the EEA 1998, which defines victimization as adverse treatment in response to discrimination complaints. She asserted that she was targeted after making her complaint or indicating her intention to pursue legal action.
The Complainant was seeking redress under Section 77 of the EEA 1998.
Summary of Respondent’s Case:
Preliminary Issue
The Complainant’s claim is statute-barred, and the W.R.C. lacks jurisdiction to hear the case under Section 21 of the Equal Status Act, 2000, specifically Subsection (2). The Complainant failed to notify the Respondent within the time required by law to initiate the claim. The Complainant submitted a Notification of Claim (Form E.S.I) on October 5, 2020, regarding incidents that allegedly occurred up to May 19, 2020. The Respondent relies on Section 21(2) of the Equal Status Act, 2000, which mandates that written notice of an allegation be given within two months of the last incident of prohibited conduct.
The Complainant also filed a related claim in the Circuit Court on July 9, 2021, arising from the same cause of action, and therefore, this claim should be dismissed.
Substantive Issue
The Complainant failed to inform the Respondent about the alleged conduct of her co-worker in a timely or adequate manner, denying the Respondent a reasonable opportunity to address the allegations. The Complainant also refused to file a formal complaint against the co-worker, opting for an informal and anonymous approach. As such, her claims that the Respondent failed to investigate or take action are unfounded.
The Respondent was unaware of any harassment until an unrelated argument between the Complainant and the co-worker over COVID-19 protective gear, at which point the harassment allegations were first introduced.
The relevance of *Nail Zone Limited v. A Worker (EDA 1023)* is limited here, as the issue of whether harassment is judged subjectively or objectively is separate from determining Employer liability, which must first be proven. The case *A Complainant v. A Contract Cleaning Company (DEC-E2004-068)* is also not applicable, as the facts are significantly different, involving third-party Employees and unrelated circumstances.
Similarly, the cases *Catlan Trading v. McGuinness* and *An Employer v. A Worker (EDA0916)* do not support the Complainant’s arguments. The facts of those cases differ greatly from the present one.
The Complainant’s interpretation of Section 14A of the EEA 1998 is incorrect. The section does not equate harassment with discrimination but outlines situations in which harassment may occur if proven by evidence.
Lastly, the Complainant’s assertion that she was victimized by the Respondent under Section 74(2) of the EEA 1998 is unsubstantiated. The Complainant has not provided any specific evidence or details to justify this claim, which was never raised within the statutory time frame. The Respondent objects to the introduction of such a claim at this stage.
Findings and Conclusions:
Preliminary Issues
Requirement for ES1 Notification: The Complainant’s allegations were initially cited under the Equal Status Act, 2000. However, these allegations fall under the Employment Equality Act, 1998, which does not require an ES1 notification.
The Employment Equality Act, 1998 granted the Adjudicator the authority to hear this case, despite parallel proceedings in the Circuit Court that remain unresolved. The Court of Appeal in Culkin v. Sligo County Council [2017] 2 IR 326 established that individuals may pursue both a discrimination complaint with the Workplace Relations Commission and a personal injury claim based on the same circumstances. Thus, the Adjudicator had jurisdiction to hear this case.
Substantive Issues
The Complainant alleged harassment and sexual harassment by her supervisor, Mr. X. The definitions of harassment and sexual harassment are provided in Section 14(A)(7) of the Employment Equality Act, 1998:
- Harassment involves unwanted conduct related to discriminatory grounds.
- Sexual harassment includes unwanted verbal, non-verbal, or physical conduct of a sexual nature that violates a person’s dignity or creates a hostile environment.
The non-sexual harassment claim pertains to a disagreement about protective clothing during COVID-19. Evidence did not demonstrate that this was related to the Complainant’s gender or any discriminatory grounds, thus falling outside the Adjudicators jurisdiction under the Employment Equality Act.
The key allegation was sexual harassment and victimization. The Complainant stated that a colleague raised concerns on behalf of herself and other female Employees, but the colleague denied this. The Complainant later reported the sexual harassment, claiming that the Respondent did not investigate and that she faced victimization for speaking up. Following her complaint, Mr. X threatened the Complainant, and Ms. Y, a fellow Employee, testified to these threats.
The Respondent presented several witnesses who testified that:
- The Complainant was friendly with Mr. X and had given him car lifts.
- They shared adult jokes, and Mr. X taught her sexual expressions in Polish, which she participated in willingly.
- When Ms. C, the Manager, first addressed the issue, she asked the Complainant whether she wanted to make an informal or formal complaint, to which the Complainant opted for informal.
- The investigation was ongoing when the Complainant went on sick leave, preventing its completion.
Section 23 of the Employment Equality Act states:
- If an Employee is sexually harassed by another Employee (or by someone the Employer should reasonably have prevented), it constitutes discrimination by the Employer.
There is conflicting evidence about whether the Complainant gave Mr. X lifts in her car. Regardless, giving a lift does not imply consent for sexual advances. Likewise, while they shared adult jokes, this does not equate to agreement for the physical contact described by the Complainant.
A critical point made by Ms. C was that the Complainant wanted an informal resolution. The Complainant denies this and claims Ms. C requested a written complaint, which typically indicates a formal process. After informing Mr. X about the complaint, he first denied the allegations and then threatened the Complainant. An informal resolution was clearly ineffective, and the threats from Mr. X warranted investigation for potential gross misconduct, which did not occur.
On June 10, the Complainant clarified her desire for a formal investigation. In summary, given the serious nature of the allegations against Mr. X and his threatening response, the Respondent could not reasonably address the issue informally. During the Complainant’s sick leave, there was no indication that the Respondent informed her that the investigation could not proceed without her return; instead, she was told it was ongoing as of July 24. Therefore, the Respondent failed to properly address the sexual harassment complaint, resulting in discrimination against the Complainant on gender grounds. Additionally, the Complainant faced victimization through Mr. X’s threats.
Decision:
Section 41 of the Workplace Relations Act 2015 required the Adjudicator to make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that
Section 79 of the Employment Equality Acts, 1998 – 2015 required the Adjudicator to make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
The Complainant was discriminated against in relation to her conditions of employment on the gender grounds and was victimised for bringing the complaint.
The Adjudicator ordered the respondent to pay the complainant the sum of €30,000 in compensation.