Complainant

Respondent

Parties

Joanna  Mole

McCarthy Keville O'Sullivan Ltd.

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-00042016-001

17/01/2021

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and three witnesses for the respondent all gave their evidence under affirmation.

The complainant submitted that she handed in her notice on 11 December and that under her contract she was obliged to give a one month notice period.  She submitted that the last day she wanted to work was 18 December and that she wanted to use up the remainder of her accrued annual leave, public holidays and the discretionary leave usually afforded to employees over the Christmas period to finish up on 11 January.

She submitted that under the provisions of her contract it was possible to work a shorter period but only where it is mutually agreed, and she had not agreed on a shorter timeframe.  The complainant submitted that the respondent summarily terminated her employment on 18 December leaving her short four and a half days payment.

The respondent submitted that when the complainant gave in her notice, she indicated hat she did not want to work in the office after 18 December, accordingly it terminated her employment with effect from that date and paid her the outstanding holiday pay.  It suggested that the only difference between what it paid the complainant and what she was seeking relates to three public holidays and one and a half day which were only given to employees on a discretionary basis.

The complainant’s contract states that she is required to provide one months’ notice to the respondent.  The contract further states that this period may be reduced “where it is mutually agreed”.  The complainant provided documentary evidence to show that this had not been mutually agreed, quite the contrary, she had opposed this approach. The complainant sought to finish up work with the respondent on 18 December 2020 and to use her accrued holidays to cease employment on 11 January 2021.  In that regard she was factoring in accruing three public holidays and the customary one and a half days afforded to all of the respondents’ employees.  If she had been given these days she would have been indeed able to finish up on 11 January 2021. 

The respondent submitted that the one and a half days given to all staff at Christmas were discretionary and indicated at the hearing (for the first time) that they were not willing to give these days to the complainant.  Having regard to this fact, the complainant would have been required to attend the office for a half a day on 7 January and a full day on 8 January 2021.  However, this option was never offered to the complainant.  Accordingly, she had only accrued enough holidays to cease employment halfway through the day on 7 January 2021.

Having regard to all the written and oral evidence, I am satisfied that the complainant had accrued enough holidays to finish working on 18 December and to cease employment halfway through the day on 7 January 2021.  On the basis of the foregoing, I find that the complainant has established a well-founded complaint in relation to the retention of her wages for the three days from halfway through Monday 4 January until halfway though Thursday 7 January 2021.

Having regard to all the written and oral evidence presented in relation to this matter, my decision is that this complaint is well-founded, and I hereby direct the employer to pay the complainant compensation of €609.70 (equivalent to the net amount for one week’s pay), which I consider to be reasonable in all the circumstances.

Payment of wages, well founded, compensation