In the case of An Engineer v A Technology Start Up the Workplace Relations Commission was asked to consider a number of questions including whether the Complainant was entitled to redundancy etc.

The complainant engineer had also not taken holidays for some time and the Workplace Relations Commission considered how many annual leave days the employee was entitled to in that leave year.

The Workplace Relations Commission noted that the complaint was submitted on October 22nd 2019 and therefore had the power to look back 6 months to April 23rd 2019. It noted that Section 2 of the Organisation of Working Time Act 1997  provided that the “leave year” is any year beginning on April 1st and therefore the Workplace Relations Commission had to consider the complainant’s entitlement to holidays for the leave year from April 1st 2019 until March 31st 2020.

It concluded that the employee finished work with the company on September 30th 2019 and therefore at the date of his termination, he worked for six out of twelve months of the leave year and therefore accrued six twelfths of his annual entitlement of 20 days’ holidays, equivalent to 10 days.

In respect of previous year’s annual leave, the Workplace Relations Commission noted that the complaint was submitted to the WRC on October 22nd 2019. In accordance with the six-month time limit prescribed at section 41(6) of the Workplace Relations Act, I can consider a complaint under section 19 of the Organisation of Working Time Act from April 23rd 2019.   Section 2 of the Act provides that the “leave year” is any year beginning on April 1st and, in the first instance, I must consider the complainant’s entitlement to holidays for the leave year from April 1st 2019 until March 31st 2020.

I have concluded that the complainant finished work with the respondent on September 30th 2019. Therefore, at the date of his termination, he worked for six out of twelve months of the leave year. As a result, he accrued six twelfths of his annual entitlement of 20 days’ holidays, equivalent to 10 days. I find therefore, that he is entitled to pay for 10 days’ holidays not taken in respect of the leave year from April 1st 2019 until his employment terminated on September 30th 2019.

In respect of previous year’s holidays, the Workplace Relations Commission noted that neither side had kept a record of the holidays taken. It noted

In general, the responsibility for ensuring that an employee takes their holidays falls on the employer. In the case under consideration here however, the complainant was a part-owner of the company and he had a different relationship with his employer compared to most employees in the “master-servant” type relationship.   The complainant had a degree of autonomy in how he did his job. He made no claim that he was discouraged from taking his holidays or that any request to take holidays was not granted. My sense is that he simply had to inform the CEO when he would be on holidays. He was always aware of the build-up of the holidays he had not taken and, at the hearing, he said that it was intention to take his holidays at the end of the project”.

The Workplace Relations Commission had to estimate what holidays were not taken by the complainant employee and observed that 10 days was reasonable in the circumstances.

The Workplace Relations Commission also looked at the case of C-619/16 (Sebastian W. Kreuziger v Land Berlin) and C-684/16 (Max-Planck-Gesellschaft zur Förderung der Wissenschaften eV v Tetsuji Shimizu) which found that he right to pay for holidays not taken may lapse only when the employer gives the worker an opportunity to take the holidays in good time.

The Workplace Relations Commission concluded that as the complainant employee did not rely on employer approval to take annual leave, that in essence he chose not to take them and therefore was not entitled to paid for these holidays.