ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000377

Complaints for Resolution:

Date of Adjudication Hearing: 15/06/2016

Workplace Relations Commission Adjudication Officer: Kevin Baneham

1. Procedure:

1. On the 18^th November 2015, the complainant referred complaints to the Workplace Relations Commission in relation to breaches of the Payment of Wages Act and the Organisation of Working Time Act. In advance of the adjudication of the complaints, the complainant wrote to the Workplace Relations Commission to indicate that he was able to withdraw other complaints. The remaining matters were referred to an adjudication hearing on the 15^th June 2016.

1. The complainant attended the adjudication as did the Executive Director of the respondent. The complainant was the respondent’s Chief Technical Officer and the respondent is engaged in the development of technology. The complainant submitted a witness statement to the adjudication and the respondent submitted a copy of the complainant’s contract of employment.

1. In accordance with Section 41(4) of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

2.        Complainant’s Submission and Presentation:

2. The complainant commenced employment with the respondent on the 27^th January 2014 and this came to an end on the 9^th October 2015 when he resigned. He was the Group Chief Technical Officer with the respondent and his annual remuneration was €131,000. He outlined that he was engaged by the respondent to develop a team of engineers, but this did not occur as he was never provided with the head count to grow the product and team as agreed. The lack of head count also meant that he worked long hours, including over weekends and over public holidays and periods of leave.

2. The complainant outlined that during 2014 and because of the demands of work, he was unable to avail of all the 23 days of annual leave provided in his contract of employment. At the end of 2014, the complainant said that he raised his outstanding leave with the respondent CEO and with the Finance Manager and it was agreed that the annual leave would be carried over to 2015. It was only after the end of his employment in October 2015 that the respondent CEO stated that the annual leave would not be paid as there had been no written authorisation for the leave to be carried over. In response to the respondent’s submissions at the adjudication, the complainant said that he felt that there had been an agreement with the respondent that the leave could be carried over and the contract does not specify who is to put any such agreement in writing. He had taken the respondent at its word. It had always been his understanding that the leave had been carried over as the 10 days were always included in the allocation of leave for 2015. It was only after his employment ended that an issue was raised.

3.        Respondent’s Submission and Presentation:

3. The respondent outlined that it was not liable to pay the 10 days of annual leave as no written authorisation had been provided to allow the ten days’ leave for 2014 carry over to the following year. This clause had been inserted into the contract as there had previously been problems with employees carrying over leave and then asking for extended periods of leave. It was not the case of “use the leave or lose it”, but a case of an employee coming to an arrangement in writing with the employer or “lose it”. The respondent director outlined that he had no recollection of the conversations with the complainant about carrying over the leave and that he had had a great many conversations with the complainant at this time.

4. Findings and reasoning:

4. These are claims pursuant to the Payment of Wages Act and the Organisation of Working Time Act. The definition of “wages” provided at section 1 of the Payment of Wages Act includes pay for holidays payable under his contract of employment. The contract in this case provides for 23 days’ annual leave. The point at issue is whether the complainant is prevented from recovering for the equivalent of ten days’ pay carried over from 2014 to 2015. The complainant states that he had an agreement with the respondent for the leave to be carried over; the respondent states that it is not liable because no such written authorisation was provided.

4. The relevant clause in the complainant’s contract of employment states: “Any unused holidays in any holiday year cannot be carried over to the next holiday year and payment will not be made in lieu of any unused basic holiday entitled (except if agreed otherwise in writing with the Group CEO or in the event of the termination of your employment as detailed below).” The contract later provides that “[the respondent] shall forthwith pay you all accrued and unpaid remuneration fees and expenses due under the terms of this contract unless otherwise stated therein.”

4. I have no hesitation in finding that the respondent agreed that the 2014 leave could be carried over to 2015. This finding is made on the basis of the complainant’s evidence and the fact that the respondent did not dispute the carrying over of leave until at the end of the complainant’s employment. To resolve this dispute, it is sufficient to apply the terms of the contract. The clause regarding unused annual leave uses the conjunction “or”, one referring to written authorisation and a second relating to payment on termination. The second course is the one relevant to this dispute; the complainant is seeking payment on the termination of his employment. Clause 4.6.2 provides the respondent with a contractual obligation to pay unpaid remuneration fees at the termination of the employee’s employment. This includes the ten days’ leave not paid by the respondent and now sought by the complainant. Applying clause 4.6.2 and the definition of wages contained in the Payment of Wages Act, the complainant is entitled to recover for the ten days’ leave he is due. Given that his annual salary was €131,000, this amounts to €3,589.

5. Decision:

5. Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints.

5. The respondent shall pay to the complainant the amount of €3,589, this being compensation for unpaid wages due to the complainant and not paid by the respondent in breach of the Payment of Wages Act.

Dated:   13^th July 2016