Complainant

Respondent

Parties

Chris Ryan

BCM Global

Representatives

Self-represented 

Emily Maverley, IBEC

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-00056781-001

22/05/2023

The respondent is engaged in the servicing of mortgage, real estate and commercial loan servicing.  From April 10th 2017 until November 29th 2022, the complainant was employed as an asset manager.  He claims that, when his employment ended, he was owed wages for eight days’ holidays that he did not take.  It is the respondent’s position that, as he claims pay for holidays not taken in 2018 and 2019, the complaint has been submitted outside the time limit set out at s.41(6) of the Workplace Relations Act 2015.  On behalf of the respondent, Ms Maverley also submitted that the complainant was paid for his annual leave as and when it occurred and that no payment is due.

The complainant’s contract of employment provided that he was entitled to annual leave as follows:

Up to two years of service:  23 days

Two to five years of service:  25 days

More than five years of service:  27 days

Having commenced with the respondent in April 2017, by April 2022, the complainant was entitled to 27 days’ holidays.  He finished working for the respondent on November 29th 2022 and, in an email to the HR team on April 6th 2023, he asked for an update on “eight days of unused holidays dating back to 2018/2019 for which I am yet to be compensated as per the terms and conditions of my contract.”  He had previously made efforts to have this issue resolved with his manager, who left the company in early 2023.  When he got no reply to two follow-up emails to the HR team, on May 22nd 2023, just a week before the expiry of the six-month time limit, he submitted this complaint to the WRC.

On May 29th 2023, a member of the HR team wrote to the complainant and said that she hoped to provide an update “in the next day or two.”  There is no evidence that any update was provided.

On the form he submitted to the WRC, the complainant claims that he had “approximately eight days of holidays that I never used…”  He claims that the company’s policy on annual leave provided that only five days’ holidays could be carried over from one leave year to the next and that “no payment will be made in lieu of unused holiday entitlement except at the end of your employment.”

The complainant claims that, at the termination of his employment, he was entitled to be compensated for the eight days’ holidays that he did not use.

As a preliminary matter, Ms Maverley referred to the statement on the complaint form, where the complainant said that he was seeking pay for unused holidays dating back to 2018 / 2019.  Ms Maverley argued that, as this complaint was submitted to the WRC on May 22nd 2023, it is outside the statutory time limit of six months, and the extended time limit of 12 months within which complaints must be submitted and which is provided for at s.41 of the Workplace Relations Act 2015. 

Considering the complaint itself, Ms Maverley referred to the complainant’s contract of employment which provides that,

In each complete calendar year (1 January – 31 December) you will be entitled to annual leave as follows:

Length of Service:  Annual Leave Entitlement

Up to 2 years:  23 days paid leave

2 – 5 years:  25 days paid leave

After 5 years:  27 days paid leave

Annual leave must be taken at times agreed by you and your manager. All annual leave entitlement must be taken within the same annual leave year. No payment will be made in lieu of unused holiday entitlement except at the end of your employment.

If you leave the Company part way through the year, your holiday entitlement will be pro-rated for each complete month worked. You may be asked to take some or all of your outstanding holiday during your notice period or The Company may pay you for any holiday not taken. If you have taken more holidays than your entitlement at the date of leaving, an appropriate amount will be deducted from any monies due to you.

Ms Maverley said that, by custom and practice, employees were permitted to carry over five days of untaken annual leave into the following leave year and, in line with this practice, the complainant carried five days each year.  She provided a table setting out the number of days holidays that the complainant took each year from 2019 until 2022.

In 2019, he carried over 11 days from 2018.  He took 20 days’ holidays that year, leaving him with an untaken balance of 15 days.

In 2020, he carried over 8.5 days from 2019.  He took 20 days’ holidays in that year also, leaving him with an untaken balance of 13.5 days.

In 2021, he carried over 5 days from 2020.  He took 25 days’ holidays that year, leaving him with an untaken balance of 5 days.

In 2022, he carried over 5 days from 2021.  He took 27 days’ holidays that year, leaving him with an untaken balance of 2 days.

Some of the days referred to above have fractions of days added on, but for convenience, I have not included the partial days.

Ms Maverley referred to the statement in the complainant’s contract of employment that, 

“No payment will be made in lieu of unused holiday entitlement except at the end of your employment.

She suggested that the reference by the complainant to this statement in his complaint form indicates that he may have misinterpreted the provisions of s.23 of the Organisation of Working Time Act in relation to annual leave at the cessation of employment.

At the termination of his employment on November 29th 2022, the complainant taken 26.9 days of his accrued holidays of 29.75 days.  He therefore had a balance of 2.1 days not taken.  A copy of his final payslip was provided at the hearing and shows that he was paid in lieu of 2.1 days’ holidays in his final wages.

Ms Maverley referred to s.19 of the Organisation of Working Time Act which provides that employees have a statutory entitlement to four weeks’ holidays in a leave year.  She submitted that the complainant’s contractual entitlement to any additional leave cannot be the subject of a complaint under the Act.

This is a complaint regarding an entitlement to annual leave at the cessation of employment.  I understand the respondent’s position that, because the leave referred seems to have been not taken in 2018 and 2019, the complaint is outside the statutory time limit.  However, as the complainant’s position is that he carried over the leave up to the termination of his employment, I think there is merit in dealing with the substantive issue.

I agree with Ms Maverley, and it seems to me that the complainant has misinterpreted the provision in his contract of employment that, “no payment will be made in lieu of unused holiday entitlement except at the end of your employment.”  A normal reading of this phrase must be that pay for unused holidays will be made where an employee has unused holidays in the leave year in which their employment ends.

At the hearing, I explained to the complainant that, in accordance with s.19 of the Organisation of Working Time Act, I can only consider a complaint regarding a contravention of his statutory entitlement to four weeks’ holidays.  It is evident from the documents submitted, that the complainant benefited from his statutory entitlement to holidays in each year that he was employed by the respondent and, in some years, he availed of more than 20 days. 

in the leave year 2022, the complainant took 26.9 days’ holidays, leaving him with a balance of 2.1 days’ not taken.  He was paid for these untaken days in his final wages.  I am satisfied that this is in excess of the statutory leave to which he was entitled.  I must conclude therefore, that there is no merit to his complaint.

For the reasons I have set out above, I decide that this complaint is not well founded.

Annual leave, holidays due at cessation of employment