Complainant

Respondent

Anonymised Parties

A sales director

A hotel group

Representatives

  Self

 Group management

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-00026733-001

03/03/2019

The Complainant was employed by the Respondent as a Sales Director from 1^st May 2018 until 31^st January 2019.

The Complaint submitted to the Workplace Relations Commission is referred under section 6 of the Payment of Wages Act, 1991 and was received by the WRC on 3^rd March 2019.

The Complainant contends that on the cessation of his employment he was not paid all his entitlements.

These unpaid entitlements were listed as a Pension Contribution of €3,750 and Holiday Entitlement of €1707.

The Complainant also mentioned three days in lieu of having to travel west to meetings.

The Respondent wrote to the Workplace Relations Commission on 19^th March 2019 providing a statement of events in relation to this complaint. A copy of this statement was sent to the Complainant on 1^st April 2019.

The Respondent contends that all monies owing to the Complainant were fully discharged and goes further by stating that the Respondent had been very generous with the Complainant at the cessation of employment.

In coming to any decision in this complaint I must consider the Complaint under the Payment of Wages Act 1991.

 I will address the Pension payment first.

The Payment of Wages Act 1991 (section 1 Interpretation) describes wages as follows:

“wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including –

a)      Any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

b)      Any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:

Provided however that the following payments shall not be regarded as wages for the purposes of this definition:

         I.            Any payment in respect of expenses incurred by the employee in carrying out his employment,

       II.            Any payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as compensation for loss of office

     III.            Any payment referable to the employee’s redundancy

    IV.            Any payment to the employee otherwise than in his capacity as an employee

      V.            Any payment in kind or benefit in kind.

From this definition a pension contribution paid by an employer cannot be considered as wages. This part of the complaint therefore is not well founded and fails.

Holiday entitlement.

The Complainant contends that he was due payment of €1707 when his employment ended. Byemail dated 29^th January and sent to the Complainant by Mr BA it was stated that the Complainant had taken the following days as annual leave:

Monday 9^th July 2018 to Friday 13^th July 2018    -   total 5 days.

Monday 16^th July 2018 to Friday 20^th July 2018   -  total 5 days.

Monday 23^rd July 2018 to Friday 27^th July 2018   -  total 5 days.

Monday 24^th December 2018                                 -   total 1 day.

Thursday 27^th December 2018                               -    total 1 day.

Friday 28^th December 2018                                    -     total 1 day.

Monday 31^st December 2018                                 -     total 1 day.

Total days taken                                                        -          19 days

There appears to be some dispute over the four days taken at the Christmas period. The law in relation to annual leave is quite exact and states as follows:

Section 20 (1) The times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements and subject –

a)      To the employer taking into account -

(l)  the need for the employee to reconcile work and family responsibilities,

(ll) the opportunities for rest and recreation available to the employee

b)      To the employer having consulted the employee or the trade union (if any) of which he or she is a member, not later than 1 month before the day on which the annual leave or, as the case may be, the portion thereof concerned is due to commence, and

c)       To the leave being granted within the leave year to which it relates or, with the consent of the employee, within the 6 months thereafter.

In this instant case there appears to have been no consultation between the employer and employee in relation to the four days around the Christmas period i.e. 24^th December 2018, 27^th December 2018, 28^th December 2018 and Monday 31^st December 2018.

Adopting  a strict application of the law I have decided that these four days cannot be considered annual leave days.

The Complainant was employed for a period of exactly nine months, during this period he would have accrued a holiday entitlement of 15 days pursuant to section 19 of the Act. Having discounted the four days at the Christmas period the Complainant took 15 days, this is what he had earned during his period of employment per the Organisation of Working Time Act 1997.

Having considered this element of the complaint I find that it is not well founded and fails.

In relation to the three lieu days mentioned in the complaint I do not have enough information regarding the company policies to make a decision. It could be argued that the three days in lieu of the travelling days were taken at the Christmas period.

The Complaint as presented under the Payment of Wages Act 1991 is not well founded and therefore fails.

Payment of Wages on the cessation of employment.