ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00002230
Complaint(s)/Dispute(s) for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00002822-001 | 23/02/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00002822-002 | 23/02/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00002822-003 | 23/02/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00002822-004 | 23/02/2016 |
Date of Adjudication Hearing: 29/06/2016
Workplace Relations Commission Adjudication Officer: John Tierney
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 [and/or Section 8(1B) of the Unfair Dismissals Act, 1977, and/or Section 9 of the Protection of Employees (Employers’ Insolvency) Act, 1984, and/or Section 79 of the Employment Equality Act, 1998, and/or Section 25 of the Equal Status Act, 2000] 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 have not received any Annual Leave or Public Holiday payment from September 2009 to August 2015 which I am legally entitled to under Organisation Working Time Act 1997. |
As I was an employee of the College from September 2009 until August 2015 I was entitled to a Contract of Indefinite Duration. This was denied to me by the College even though it had been pointed out to them several times both in email on 26th June 2014 at 15:44 and in several meetings: 20th of June 2014, 23rd of June 2014 and 26th of June 2014. In each of these meetings I explained to the college that as I was an employee of more than 4 years I was essentially a permanent employee of the college and was entitled to a Contract of Indefinite Duration. At no time in either meetings or emails was this fact acknowledged by the college representatives. The job that I held is currently being filled by a previous work colleague. I was entitled to hold that position indefinitely but the College denied me that opportunity. |
I was awarded €5,000 redundancy payment from the College upon termination of my role. This was supposed to be paid on 31st August 2015. I received the payment a month later on the 30th September. However, I received the sum of €2,100. When I contacted the college to query this mistake I was informed that the payment had been put through as wages and was therefore subject to tax. I am also in dispute with the College under the Payment of Wages Act as they wrongfully deducted monies from my pay that they advised was tax free. Under the Redundancy Act any payment made is tax free. The basic exemption is €10,160. It is unlawful to deduct tax from any amounts of this value or less. Prior to signing my final contract with the college I queried the €5000 payment and sought clarification from both the Bursar of the College and the Head of Human Resources, on July 1st 2014 at 10:42 and also on July 2nd at 12:28. I received email confirmation from the Head of Human Resources on July 4th 2015 at 01:18:58 that this payment was tax free. Despite this confirmation my payment was taxed by the College. |
The claims under the Redundancy Payments Act and the Payment of Wages Act were withdrawn.
Respondent’s Submission and Presentation:
The Respondent stated that in regard to the claim under the Organisation of Working Time Act, the Claimant was afforded holidays during the period of the college closure which he received extensive paid leave during this time.
In regard to the claims under the Unfair Dismissals Act and Fixed Term Work Act, the Claimant knowingly entered into a termination agreement. In this agreement he was given 15 months’ notice of the termination of his role and was offered and accepted, a full and final settlement an ex gratia payment of and was offered and accepted, a full and final settlement an ex gratia payment of €5,000.00, which he acknowledged at the time as a gross payment.
The Claimant only now seeks to claim unfair dismissal because of his continued misunderstanding of the term ‘ex gratia’ and the tax implication thereof.
Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
[Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Section 9(3) of the Protection of Employees (Employers’ Insolvency) Act, 1984 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 9(4) of that Act.
Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
Section 25 of the Equal Status Act, 200 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.]
Issues for Decision:
Was the Claimant unfairly dismissed?
Did he receive his entitlements?
Was he entitled to a contract of indefinite duration?
Legislation involved and requirements of legislation:
Section 27 of the Organisation of Working Time Act 1997
Section 14 of the Protection of Employees (Fixed Term Work) Act 2003
Decision:
I have considered the submissions of both parties. The main dispute between the parties relates to the ex gratia payment. In legal terms it is defined as [as a favour] not arising pursuant to a legal liability. Therefore, the Respondent is not in breach of the terms of the termination agreement. As the Claimant voluntarily agreed to terminate his employment by this agreement, the claim for unfair dismissal and a contract of indefinite duration fail as they were made after he accepted the terms to leave.
In regard to holiday entitlement, as he was on paid leave during the college closure for holidays, the Respondent is not in breach of the Organisation of Working Time Act.
I do not find the claims well founded and they fail.
Dated: 26/07/2017