Complainant

Respondent

Anonymised Parties

An e-commerce Manager

A Software House

Representatives

  Self- Represented

Maeve Griffin, Solicitor of  William Fry Solicitors

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-00030818-001

09/09/2019

The issue in contention concerns an alleged non-payment of a number of days holiday pay on the ending of employment.

The Complainant had an Annual leave entitlement of 22 days per leave year (01/01/xx to 31/12/xx), He carried over, in his view, 9.5 days from 2016 to 2017.  He took three of these days before March 2018 leaving a carried over balance of 6.5 days. It was acknowledged that the Respondent paid him 26 days leave on his leaving employment in March 2019 but omitted to pay the outstanding balance          (6.5 days) of carried over days. He is due these days.

The Respondent pointed out that this claim was misconceived and should have been made under the Organisation of Working Time Act, 1997 – (the OWT Act, 1997 for convenience) and not the Payment of Wages Act,1991.

Notwithstanding this point, the Respondent made the factual case that the Complainant had joined the Company in February 2016. He had been given a pro rata Annual leave Allowance of 20 days and not the full years 22 days as claimed. He took 12.5 days leave in 2016.

The 2016 to 2017 carry over was there fore 7.5 days (not the 9.5 days in the Complainant’s view)

He took three of these days before the 31st March leaving 4.5 days. In keeping with well advised Company Policy and the Terms of his Contract of Employment (Section 6.4) these days were forfeit as they were untaken by the 31st March 2017.

All the rest of his Annual Leave for 2018 and 2019 was accurately paid - coming to 26 days – on his ending of employment.

The Pro Rata calculation for 2016 and the Company policy of Unused Annual leave being subject to forfeiture if untaken is perfectly legal.   Annual Leave is required to be taken (ref section 20 :1 (c) of the OWT Act) inthe Leave Year in which it is due or by agreement no later than six months after. The accrual of the carry over did not occur in a Period of Sick Absence and the 15-month sick leave extension Section 20:1(c) (iii) cannot apply.

The Respondent has no case to answer under either the Payment of Wages Act, 1991 or the Organisation of Working Time Act, 1997.

The case hinged on the plain facts irrespective of which Act was proper. The Payment of Wages Act,1991 does allow for a claim for outstanding holidays - ref definition of Wages in Interpretation Section 1.

The Respondent demonstrated that the Pro Rata calculation for 2016 was correct and that the policy of forfeiture of unused carry overs was covered by the Contract of Employment. An e-mail to all employees giving the 31st March as the carry over deadline was exhibited. This was contested by the Complainant as “having never been received”. Regrettably for the Respondent it was not dated but it appeared to be genuine and from the period in question.

However, in addition, the contract of Employment was clear at Section 6.4

“Unused Holidays may not be carried forward from one year to the next unless other wise agreed with the company in writing”

The request to carry over the 2016 days (beyond the March deadline) was not agreed to and the Complainant lost the days.

The Complainant strongly denied that he had ever been consulted and if he had been he would have objected strongly.

On balance I had to make a judgement call based on both sets of witness evidence. I found, on the balance of probability, in favour of the Respondent.

The claim is not Well Founded.