A worker who had just 18 days’ paid holidays in the course of six years at a Co Cavan piggery has won nearly €14,000 after his former employer was found liable for unpaid annual leave dating back over half a decade.
Ruling on a series of statutory complaints by the worker, a Workplace Relations Commission (WRC) adjudicator remarked that the man’s former boss “did not appear to be concerned that he had a worker who kept working and did not avail of his right to paid time off for the entire six years that he worked for him”.
Four complaints brought by Ryszard Kulbaka against the piggery operator, Drumloman Pork Ltd, under the Organisation of Working Time Act 1997, the Terms of Employment (Information) Act 1994 and the Payment of Wages Act 1991 were upheld by the tribunal in a decision published today (MON).
Giving evidence via a Polish interpreter at a hearing last month, Mr Kulbaka said in evidence he had worked for the Co Cavan pig farm, earning the minimum wage from December 2017 to November 2023, feeding the animals and disinfecting holding pens.
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Mr Kulbaka’s case was that he never received written terms of employment in the six years he was there – and that the most annual leave he ever received in a full year was five days, despite a statutory entitlement to four weeks’ paid leave.
He had no paid time off in 2017 despite being entitled to 18.5 hours’ paid leave on foot of the short time he worked at the farm that year, he said. The following year he got four days’ leave rather than the four weeks set out in law – meaning he had been left short by €1,658.09 that year, he told the tribunal.
He had between two and five paid days off each year up to 2022 – and just one day’s leave in 2023, he said.
In all, it was submitted on Mr Kulbaka’s behalf that he was due pay in lieu of annual leave totalling €11,520.65, along with smaller sums for the non-payment of wages due for weekend work and for a public holiday.
At the hearing, company director Eamon Briody admitted that the firm left Mr Kulbaka short by €5.23 on his weekly pay toward the end of the employment, which fell into the tribunal’s usual jurisdiction of six months, leading to a liability of €36.61. He also conceded Mr Kulbaka was owed €90.40 in public holiday pay.
He “did not deny there was a manifest shortfall” in annual leave every year, the tribunal recorded – but stated that he “advised [Mr Kulbaka] that if he did not take annual leave, he would lose it”.
Asked by adjudicator Emile Daly why he thought Mr Kulbaka “would have worked for four weeks each year he could have not worked and still been paid”, Mr Briody said he “did not know”.
The director said he “just wanted all the complaints done and dealt with” because it was causing him “great stress to deal with this”, Ms Daly noted further.
The company director’s position was that he “treated [the worker] very fairly” and argued that the historic annual leave claims were “largely out of time”.
Adjudicator Emile Daly wrote in her decision that there was “clear” European case law placing an onus on an employer to prove a worker had been allowed take their annual leave and to “exercise due diligence to ensure that the leave is taken”.
“If the employer is relying on ‘use it or lose it’ warnings, there must be clear evidence of this,” she added.
However, she found that Mr Briody had failed to show in his evidence that he exercised due diligence or warned Mr Kulbaka that if he failed to take his leave, he would lose it.
Mr Briody “seemed not fully aware of how fundamental annual leave is as a social right” and “did not appear to be concerned that he had an employee who kept working and did not avail of his right to paid time off for the entire six years that he worked for him”, Ms Daly wrote.
She found it “noteworthy” that Mr Briody had criticised Mr Kulbaka for not giving him four weeks’ notice but “did not appear to be concerned that his business availed of a worker who took only a few days each year of his annual leave entitlement.”
She ruled the working time complaint on annual leave well-founded, and ordered the company to pay Mr Kulbaka €11,520.65 – noting that the award was to reflect the loss of annual leave from December 2017 to November 2023.
Ms Daly also noted that when she had invited Mr Briody to provide a copy of a contract he said was provided to Mr Kubalka in 2017 for inspection he “chose not to”. She accepted the complainant’s evidence that he got no contract and awarded him four weeks’ gross pay for a breach of the Terms of Employment (Information) Act, €2,245.
She also accepted the concession of the claims in relation to unpaid public holidays and unauthorised deductions from wages awarding the worker €36.61 for the pay claim and €90.40 for the failure to provide for public holiday pay. In all, Drumloman Pork Ltd was ordered to pay Mr Kulbaka €13,892.66.
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