ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00012009
Parties:
| Complainant | Respondent |
Anonymised Parties | A General Manager of a Hotel | A Hotel |
Representatives | Colm Kitson B.L. instructed by Helen Coughlan Patrick J Farrell and Company | Dorothy Donovan B.L. instructed by Rory O'Neill Mallon Solicitors |
Complaint(s):
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-00015886-001 | 20/11/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00015886-002 | 20/11/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00015886-003 | 20/11/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00015886-004 | 20/11/2017 |
Date of Adjudication Hearing:20/03/2018
Workplace Relations Commission Adjudication Officer: Emile Daly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 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).
Background:
The Complainant worked as the General Manager for the Respondent, which is a hotel in County Monaghan. He had worked for the Respondent since 1998 and had been a part owner of the hotel business up until the business went into receivership. After this the business was taken over by a new owner the Complainant remained working as an employee of the new management. He was dismissed from his job by letter dated 14 July 2017 following an acrimonious breakdown in his relationship with his employer on foot of which he brought an Unfair Dismissal complaint that a separate decision has issued under Adj. 11368 – CA15189-001. The present complaint deals with unpaid holidays and deductions in wages. |
Summary of Complainant’s Case:
CA 15886-001: Payment of Wages: This relates to deductions made to the Complainant’s wages from 6 December 2016 and 28 February 2017 CA 15886-002: Organisation of Working Time Act: The Complainant argues that he was not paid for holidays in 2015 (14 days); 2016 (9 days) and 2017 (3 days). For the period in 2017 that he was on administrative leave, up until his dismissal and as this administrative leave was not taken by him willingly, he should not be denied the entitlement to holidays that accrued during this period. CA 15886-003: Organisation of Working Time Act: Claim for Public Holidays. This complaint was withdrawn at the hearing CA 15886-004: Payment of Wages Act 1991: This complaint was withdrawn at the hearing |
Summary of Respondent’s Case:
In respect of the 2 extant complaints the Respondent contends as follows: CA 15886-001: Payment of Wages: This complaint should be dismissed as the complaint is outside the 6-month time limit to bring a complaint and reasonable cause has not been shown CA 15886-002: Organisation of Working Time Act: 1. The Complainant is not entitled to holidays during a period of administrative leave therefore any days in 2017 are not permitted. Administrative leave should not be treated like sick leave which special provision under section 86 of the Organisation of Working Time Act allows for. Administrative leave is paid days during which the employee does not work and therefore does not constitute being “at work” in order to qualify for holidays. 2. In respect of holidays sought in 2015 and 2016 the complaints are out of time as they do not occur within the leave year or within 6 months of the leave year. |
Decision:
Section 41 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.
CA 15886-001: I find that this complaint issued after 6 months of the alleged breach and no reasonable cause having been shown I find that this complaint fails for being out of time. CA 15886-002: I find that the holidays claimed in 2015 are out of time as the complaint was instituted in November 2017. The entitlement to holidays that accrued on the cessation of his employment on 14 July 2017 (provided for under section 23 OWTA) relates only to that which he was entitled to in the leave year April to July 2017 and the previous leave year April 2016 – March 2017. The time limit to bring this complaint was six months from the date of dismissal and as the complaint was brought in November 2017, he is within time. In respect of the Respondent’s objection that no days are owed in 2017 due to the Complainant being on administrative leave for the entirety of that leave year (April to July 2017) I do not accept this argument and I find in favour of the Complainant. Holidays accrue during any period of employment. There is nothing in the contract or in statute to support the contention proposed by the Respondent, namely that during administrative leave or garden leave (a leave that occurs at the behest of the employer only) that employment rights do not continue to accrue during that period of employment. Therefore, I find in favour of the Complainant and award 9 days in 2016 and 3 days in 2017. Award: €1990.00 |
Dated: 13th November, 2018
Workplace Relations Commission Adjudication Officer: Emile Daly
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