ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00004244

Complaint(s)/Dispute(s) for Resolution:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00006247-001	03/08/2016

Date of Adjudication Hearing: 13/09/2016

Workplace Relations Commission Adjudication Officer: Michael Hayes

Procedure:

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

Complainant’s Submission and Presentation:

I worked on a fixed term contract from 15th April 2015 to 14th September 2015. My contract was for 37.5 hours per week, with a gross monthly pay of €3,750 per month. The contract specified that I was not entitled to additional salary in respect of any additional hours as may be necessary, however, I would receive time off in lieu of additional hours. On conclusion of that contract, I was offered a new contract to run from the 15th September 2015 to the 15th March 2016. My time off in lieu carried over to this new contract. In or about the 16th February 2016 I was told that I would not be offered a new contract. This was confirmed by letter dated the 18th February 2016. It was agreed that I would cease work on the 26th February 2016. From the 29th February 2016 to the 15th March 2016, I received a salary under my holiday pay entitlements. (12 days). I also received pay of 4.33 days holiday entitlement on the 16th March 2016 as part of my final pay. I was under the impression that I would be paid for my time in lieu. However, in a letter dated the 3rd March 2016 I was told that I would not receive any such payment. The Company was aware that I was saving my time in lieu for the Summer of 2016, as the Bar was due to be closed for refurbishment, and I would have no hours to work at that time. Furthermore, there had been no issue with carrying my time in lieu from my old contract to my new contract. I was only told that I was not entitled to time in lieu on the 3rd March 2016. The Company had been aware of my belief that I was entitled to payment for this time in lieu from the 16th February 2016, when it was discussed with the CEO of the Company. I was told that this amount would be calculated and paid to me.

The complainant submits that he was entitled to payment for 153 hours of pay in respect of Time Off In Lieu (TOIL) hours worked.

Respondent’s Submission and Presentation:

The respondent submits that the complainant was not entitled to payment for TOIL hours in the circumstances of the cessation of the employment and in accordance with the relevant contractual provision. The contractual provision states that “you will not be entitled to any additional salary in respect of any additional hours of work. Time off in lieu of additional hours will apply”. Its letter of the 3^rd of March 2016 outlines its position in the matter.

It does not accept that it agreed that the complainant was entitled to TOIL payment on the 16^th of February or that it had previously agreed that he could save his hours to use during the proposed summer refurbishment.

The complainant had managed the rosters and TOIL scheme in respect of other staff reporting to him in his role as Manager.

Decision:

I am satisfied that payment in respect of TOIL hours can be regarded as wages within the meaning of this Act and consequently the main question to be addressed in the herein case is whether or not the claimant had contractual entitlement to the payment in all of the circumstances.

The claimant had enjoyed such payment on two previous occasions (one at the respondent’s behest to cover Xmas closedown and the second at his own request). The process would appear to have been quite informal. On this occasion he did request that his TOIL hours be taken into consideration prior to cessation and in my opinion he could have expected that payment would not have been unreasonably withheld. Clause 5 of the contract must be interpreted on the basis of reasonable disposition and accommodation. There is no issue between the parties as it relates to the amount of additional hours worked.

It is clear that the contract precludes double payment (normal pay together with payment for TOIL) and therefore the only cognisable period is from 29^th of February to 15^th of March 2016 (12 working days or 90 hours) in circumstances where it was agreed (at very least by implication) that he would finish on the 26^th of February. I note that the respondent has unilaterally paid for that period from accrued annual leave entitlement in breach of s. 20 of the Organisation of Working Time Act, 1997 in my opinion.

I find that the respondent unreasonably withheld contractual entitlement to TOIL in the relevant period (90 hours in total) and that the claimant has no entitlement contractual or otherwise to the balance of his TOIL hours.

The complaint therefore is well founded and I hereby require that the respondent pay the claimant the net amount payable to him under contract for 90 hours of work in compensation for breach of s. 5 of the Act.

Dated: 2^nd February 2017