Complainant

Respondent

Parties

Olivia  Cumiskey

Bothar Company Limited By Guarantee Bothar

Representatives

Deirdre Canty SIPTU

Aoife Hennessy Sweeney McGann 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-00044285-001

24/05/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00044285-002

24/05/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00044285-003

24/05/2021

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. 359 of 2020, which designates the WRC as a body empowered to hold remote hearings.

The Complainant submitted her complaints to the Workplace Relations Commission on 24 May 2021 which listed three complaints in relation to pay, hours of work and contract of employment.

She was employed by the Respondent in the area of Administration from 15 August 2016 to 7 May 2021 when she was made redundant. It was confirmed by the parties at the hearing that she earned a gross annual salary of €30,000. She worked 35 hours per week.

CA-00044285-001 – Payment of Wages

The Complainant stated she was entitled to 24 days annual leave , plus Public Holidays plus one Company Holiday, Good Friday as a full-time employee. The Complainant availed of Good Friday every year as a paid day off along with her colleagues. The Employee Handbook was referenced:

“All full time Bóthar employees are entitled to 24 days holidays each year. In addition , you are entitled to Public holidays and one Company holiday which is Good Friday.” 

Emails were presented from 9 April 2020 from the former CEO to the Complainant and her colleagues stating; “ In keeping with tradition, Good Friday is a holiday for the organisation and Bóthar staff avail of a ‘day off’.”

Further emails were presented between the staff and Interim CEO on 1 April 2021 where she was told that Good Friday could be taken as an annual leave day as it was not a Public Holiday. A further email to the staff from the Interim CEO on the same day states; “ I was surprised to hear this morning that all staff expected to be off tomorrow, without my prior knowledge or consent.” She continues; “All time off is at the discretion of the employer and Good Friday is not a public holiday in Ireland.”

Later that evening on 1 April 2021 the Complainant replied to the Interim CEO noting that she would be taking Good Friday as an annual leave as she understood it to be “an organisational bank holiday practice since its founding. I will use a days annual leave pending clarification on this issue between SIPTU and Bothar.”

It is the Complainant’s claim that the Respondent unlawfully deducted Good Friday from her wages in contravention of Section 5 of the 1991 Act and in breach of her terms and conditions of employment. 

CA-00044285-002 – Hours of Work

This complaint relates to the carryover of untaken annual leave into the next annual leave year. The Complainant claims

It was submitted that the practice of carrying over annual leave was in place and recognised for the past twenty years and is provided for in the Employee Handbook under the heading of Annual Leave.

Board minutes of 26 January 2021 where the Complainant, Interim CEO were present together with members of the management team. Under the heading of AOB the Interim CEO noted there were a lot of holidays outstanding and these days needed to be taken by the end of the financial year in June 2021.

A group email to which the Complainant and Interim CEO were included in discussed a proposal to clear all outstanding annual leave but stating it was not feasible. This proposal was put to the Board of Directors’, but the Complainant did not receive a response.

The Complainant explained that she did not have time to take the annual leave days due to her between January and the date of her termination in May 2021. She needed to be at work for certain periods each month to manage direct debits etc.

The Complainant relied on an email of 18 May 2021 to the Interim CEO stating that she had 11 days for 2021 and 39 day carried over into the 2021 annual leave year plus 14 annual leave days owed through “tokens” or overtime. The 11 days for 2021 were paid to the Complainant when she was made redundant. The Complainant seeks compensation for her loss of the remaining 53 days.

CA-00044285-003 - Contract of Employment

The Complainant states she did not receive a contract of employment despite being employed for almost 5 years with the Respondent. An email from the Interim CEO dated 10 February 2021 requested that employees confirm “whether you have a contract?”. The Complainant replied by email on the same date stating she did not a contract. 

CA-00044285-001 – Payment of Wages

The Respondent submitted that a holiday on Good Friday was over and above her contractual entitlements of 25 days. The Respondent referenced Section 5 of the 1991 Act and in particular Section 5 (6) and submitted that the Complainant was note entitled to the payment for this day in accordance with her contract of employment. The Employee Handbook was referenced  with particular emphasis on “one Company holiday” which is Good Friday. It is submitted that the Complainant was advised together with all other employees that she could take a days holiday for Good Friday and that it would be from her 25 days holidays. It was stated the Complainant did take the day and was paid for her. Further reference was made to extra holidays taken at Christmas which resulted her taking 2 days more than she was entitled to take.

Emails from the Union to the Interim CEO were exhibited of 1 April 2021 requesting that the “Good Friday Bank Holiday is honoured and recognised as it has been for the past 30 years”. The Interim CEO responded on the same day advising of an external investigation which was her “priority” but would welcome a meeting after April to discuss all queries.

CA-00044285-002 – Hours of Work

The Respondent also relied on the Employee Handbook where it stated that the Complainant was entitled to 24 days annual leave together with Public Holidays and one Company Holiday, Good Friday. The Respondent further quoted the Handbook: “ We strongly encourage employees to take their full holiday entitlement each year. Carrying holidays over to a new year may only be approved by the Chief Executive or the Deputy Chief Executive.”

The Respondent stated the Board never authorised the indefinite carry over of holidays or tokens. It was submitted that the Board were unaware until recent times that this had ever been authorised, but it was the previous CEO who permitted some employees to do this, but he had no authority to do so.

An email dated 12 February 2021 from the Chief Operating Officer to the Interim CEO explained the “token” system of 1 token equated to 1 hour that could be taken as time in lieu. The email states the Complainant had 104 tokens. Reference was made to the practice been in place for over 17 years.

The Respondent opened Royal Liver Assurance Ltd v Macken [2002] 4 IR where the High Court held that an infringement in respect of an employee’s annual leave entitled accrued on the last day of the leave year. Specific reference was made to Section 20 (1) ( c) of the Organisation of Working Time Act 1997 thereby limiting the Complainant’s claim for annual leave “within the period of 6 months after the end” of a given leave year.

CA-00044285-003 - Contract of Employment

It was submitted on behalf of the Respondent that it was accepted that the Complainant did not receive a statement of her core terms of employment as provided for in the Terms of Employment (Information) Act 1994. However, it was further submitted that she did receive an Employee Handbook which set out the terms and conditions of employment. There was a request from a Board Member in 2020 to the Complainant (and all staff) to complete a HR file From. The Complainant returned the completed form on 9 October 2020. It was submitted that the Complainant was aware and in receipt of her terms and conditions in writing and not entitled to compensation.

CA-00044285-001 – Payment of Wages

Section 5 (1) of the Payment of Wages Act 1991 states:-

“(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or  

(c) in the case of a deduction, the employee has given his prior consent in writing to it.”

Good Friday fell on 2 April 2021. The Interim CEO’s email notifying the Complainant and her colleagues of the change in status of Good Friday came  one day before on 1 April 2021.  The Complainant objected to the deduction on the same day, 1 April 2021.

It is noted that despite the Interim CEO’s email of 1 April 2021 wherein she states she did not have the “knowledge” that Good Friday was considered a company holiday, she was party to the email from the previous CEO on 9 April 2020 setting out that it was given as a holiday and even replied to that emailing thanking the CEO and wishing her colleagues a Happy Easter. Furthermore , the Employee Handbook which was referred to throughout by both parties expressly states that Good Friday was “Company Holiday”.

Consequently, I find the complaint is well founded.

CA-00044285-002 – Hours of Work

Both parties relied on the Employee Handbook where it stated that the Complainant was entitled to 24 days annual leave together with Public Holidays and one Company Holiday, Good Friday. The Respondent further quoted the Handbook: “ We strongly encourage employees to take their full holiday entitlement each year. Carrying holidays over to a new year may only be approved by the Chief Executive or the Deputy Chief Executive.”

The Respondent’s referenced emphasised that carrying over of holidays into the next annual leave year and could only be approved by the CEO or Deputy CE. However, the Respondent goes on to accept that the previous CEO “permitted some employees to do this” despite not having the “authority to do so”  as the Board was never authorised the indefinite carry over of holidays or tokens. This does not make logical sense.  

The Respondent relied on Section 20 (1) (c). However, Section 20 (3) of the 1997 was not considered in this argument wherein the legislation allows for: “Nothing in this section shall prevent an employer and employee from entering into arrangements that are more favourable to the employee with regard to the times of, and the pay in respect of, his or her annual leave.”

Despite the submissions of the Respondent it can only be found in favour of the Complainant that she did accrue 14 days as a result of tokens or time in lieu earned. This decision is based on the email of the Complainant to the Interim CEO of 18 May 2021 and confirmed by the email presented by the Respondent from COO to the Interim CEO dated 12 February 2021 which also formed part of the Respondent’s submission.

CA-00044285-003 - Contract of Employment

In light of the Respondent’s email of 10 February 2021 requesting confirmation as to whether the Complainant had a contract of employment and the Complainant’s confirmation together with the request of the Board Member, I find that the complaint is well founded.  The Respondent was aware on two separate occasions of the Complainant’s lack of contract of employment still failed in its obligation to pursuant to s.3 of the 1994 Act.  However, I have also balanced this decision with acknowledging the level of detail in the Employee Handbook as regards annual leave and hours of work.

CA-00044285-001 – Payment of Wages

Having heard both parties, I declare that the complaint is well founded. I award the Complainant the sum of €115.38 which equals one days pay in compensation for the breach of the Payment of Wages Act 1991.

CA-00044285-002 – Hours of Work

Having heard both parties, I declare that the complaint is well founded. I award the Complainant the sum of €6,115.38 representing the 53 days annual leave she was due upon termination of her employment in compensation for the breach of the Organisation of Working Time Act 1997.

CA-00044285-003 - Contract of Employment

Having heard both parties, I declare that the complaint is well founded. I award the Complainant the sum of €1,153.85 representing two weeks wages in compensation for the breach of [Terms of Employment (Information) Act 1994

Payment of Wages- Hours of Work- Contract of Employment – Claims Well Founded