Complainant

Respondent

Parties

Colm  O Donohoe

Packlett Ltd Arlington Hotel

Representatives

Act

Complaint

 Reference No.

Date of Receipt

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

CA-00055415-001

06/03/2023

The Complainant tendered his resignation to the Respondent on 11 November 2022 with an end date of 9 December 2022.  At the time he tendered his resignation, the Complainant had 15 days outstanding annual leave. 

The Respondent informed the Complainant that he was not required to work out his notice and that his outstanding annual leave should be used to cover part of his notice period.

The Complainant contends that the Respondent has breached the provisions of the Organisation of Working Time Act 1997, which requires an employer to give an employee at least 30 days’ notice of annual leave.

The Complainant submits that he phoned the General Manager of the Arlington Hotel and informed him that he had accepted a position with another company and that he would be submitting his formal resignation to HR via email. The phone call was out of courtesy, as he was in South America on holidays at the time, and wanted to reassure the General Manager that when he returned on the 22 November 2022, he would be willing and available to do a full hand over and assist in any necessary training, right up until the end of his notice period on 9 December 2022. The General Manager wished him well in the new role.  The Complainant followed up with a resignation email to HR. Three days later, on 14 November 2022, the General Manager called the Complainant to say he had spoken to the company CEO, and she told him that he only needed to give one weeks’ notice, and as he had accrued enough holidays to cover this period, he didn’t need to work out his notice.

The Complainant reminded the General Manager that he was legally entitled to a minimum of two weeks’ notice (or pay in lieu), based on his time of service, but he was almost certain that his contract stated one months’ notice. The Complainant said that he would double check his contract and get back to the General Manager. Upon checking his contract, he followed up by texting a photograph of the contract section relating to notice periods. In this section it stated 1-month notice, and that the company have the right to pay salary in lieu of this period of notice. In light of this, the Complainant asked the General Manager to clarify with the CEO whether he was still not required to work out his notice period. The Complainant also requested an email from HR outlining the decision in writing. The following day, on the 17 November 2022, he received an email from HR advising that the company has accepted his months’ notice, and that he employee handbook states that "the company has the right to request that you take any holidays/lieu days you have accrued but not taken during your notice period". The Complainant replied advising that it was his understanding that an employer must provide at least 30-days’ notice when dictating holiday dates, and their policy was in breach of the Organisation of Working Time Act 1997.  The Complainant believed he was entitled to work out his notice period or be paid in lieu of notice, and he would still be entitled to payment for his accrued holidays when he finished up.

The Respondent submits that by requesting the Complainant to take his accrued annual leave during his notice period, it is in compliance with its Employee Handbook includes the following provisions in relation to notice of termination by either side:

“The Group reserves the right to pay salary in lieu of any period of notice which it or you are required to give.”

“The Group has the right to request you to take any holidays/lieu time you have accrued but not taken during your notice period.”

Preliminary Issue

Before considering the substantive issue in this case, I first must address a preliminary issue regarding the jurisdiction of the WRC. 

The complaint was submitted on 6 March 2023 under the Minimum Notice & Terms of Employment Act, 1973.  In the space provided in the complaint form for complainants to expand on their complaints, the Complainant wrote as follows: “I replied advising that it was my understanding that an employer must provide at least 30-days’ notice when dictating holiday dates, and their policy was in breach of the Organisation of Working Time Act 1997.”

I note the finding of the High Court in County Louth VEC v Equality Tribunal [2009] IEHC 370 that:

“I accept the submission on behalf of the respondent that the Form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings, where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same.”

I also note the dicta of MacMenimin J. in the Supreme Court in Louth/Meath ETB v Equality Tribunal [2016] IESC 40:

“It goes without saying, first, that the duty of the Equality Officer is both statutory, and, ultimately, delimited by constitutional considerations. As part of fair procedures, it is necessary that all parties be aware, in a timely way, of the case which they must meet. Consequently, it would be wrong, were a situation to evolve in this investigation, where one or other of the parties was under a misapprehension of precisely the range of legitimate inquiry. Second, it is hardly necessary to reiterate that it is not possible for any tribunal, upon which a particular jurisdiction has been conferred by statute, to extend or confine the boundaries of that jurisdiction by an erroneous determination of fact (see State (Attorney General) v. Durkan [1964] I.R. 279, approved in Killeen v. DPP [1998] ILRM 1). There may also be circumstances in which a tribunal, although holding jurisdiction to enter upon an investigation or inquiry, may render its decision a nullity by, for example, a denial of fair procedures.”

I further note the dicta of Charleton J. in Galway-Mayo Institute of Technology v Employment Appeals Tribunal [2007] IEHC 210:

“It follows from the foregoing that a judicial or quasi-judicial tribunal is not entitled to invoke a statutory remedy which no one has sought and in respect of which no one is on notice. For the purpose of fulfilling the requirements of natural justice, however, I would have thought that if any such tribunal does have jurisdiction to give a remedy under a particular Act, then if this remedy is sought in an originating document, for instance by ticking a box giving a choice of remedies, or if it is orally sought to in the course of the hearing, such a tribunal is entitled to make a choice in favour of it. If that happens, parties have to be taken as being aware that in the event that a decision goes a particular way the tribunal may look to a remedy claimed. In that regard, I would regard a written claim or an oral assertion seeking a particular remedy as being sufficient for the due administration of constitutional justice provided the tribunal has jurisdiction in respect of it. If remedies are complex, and a tribunal has rules as to notice in the form of simple originating documents, then it should abide by its own procedures or consider the grant of an adjournment to a genuinely surprised party.”

Applying these dicta, I note that the WRC complaint form is not a statutory form. It is intended to set out the outline of a complaint or complaints, so that, and in line with fair procedures, the Respondent knows the issues it faces. In this case, the issue a possible breach of the Organisation of Working Time Act 1997 is clearly raised in the complaint form. The complaint form was copied to the Respondent.  At the adjudication hearing, it was clear that the Respondent was fully prepared to deal with a complaint of regardless of the act under which it was referred. I find that I have jurisdiction to investigate this complaint under the Organisation of Working Time Act 1997. The decision, therefore, reflects that that this is a complaint seeking redress pursuant to the Organisation of Working Time Act 1997.

Substantive Issue

The Organisation of Working Time Act 1997 makes a number of provisions in relation to annual leave.

Section 20 makes provision for time and pay for annual leave as follows:

“(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—

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

(ii) 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, …”

Section 23 provides for compensation on cesser of employment as follows:

“(1) (a) Where—

(i) an employee ceases to be employed, and

(ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee,

the employee, shall as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or he would have received had he or she been granted that annual leave.”

In a somewhat similar case, Wicklow County Council v Winters DWT 171/2012, the Labour Court found:

“It is common case that the Complainant had four and half days annual leave entitlement outstanding when he was notified that his employment would terminate on the 1st July 2012. That notification was sent to him on the 3rd of June 2011. A simple review of the two dates reveals that his employment was due to terminate less than one month after he the date on which he received the notice of termination.

…

On the evidence presented the Court finds that, contrary to the provision of Section 20(1) of the Act, the employer, when granting annual leave to the Complainant, did not take into account the Complainant’s need to reconcile work and family responsibility and or the opportunities for rest and recreation available to the employee. Moreover, the letter sent to the employee dated the 23 June 2011 does not meet the employer’s obligation set out in Section 20(1) (b) of the Act to consult with the employee. Moreover, it was sent less than 1 month before the day on which the annual leave or, a portion thereof was due to commence.

Accordingly, the Court finds that the employer cannot maintain the argument that it “granted” the Complainant, in the manner prescribed by the Act, the portion of annual leave to which he was entitled at that time.”

The Court went on to determine, “that the Complainant had an entitlement to cesser pay in respect of the outstanding portion of annual leave to which he was entitled at the termination of his employment.”

Likewise, in this case the Respondent did not comply with the provisions of section 20 of the Organisation of Working Time Act as it did not give the Complainant sufficient notice of the requirement to take annual leave.

I find, therefore, that this complaint, insofar as it relates to annual leave, is well founded.

For completeness, I would confirm that I do not have jurisdiction under the Organisation of Working Time Act to make a decision in relation to outstanding Time Off in Lieu (TOIL).

I find that this complaint is well founded.  I direct the Respondent to pay the Complainant compensation of €3,000.

Notice of requirement to take annual leave