ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00008934
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
Date of Adjudication Hearing: 14/09/2017
Workplace Relations Commission Adjudication Officer: Ray Flaherty
In accordance with Section 41 of the Workplace Relations Act, 2015 and following the referral of the complaint to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The Complainant commenced working with the Respondent, as a hotel General Manager, on 22 June 2015. In late 2016/early 2017, discussions took place between the Respondent and the Complainant in relation to the latter’s position as General Manager.
The evidence suggests that while the Complainant was informed his position as General Manager was being made redundant, some discussion ensued around the possibility of the Complainant returning under a different contract/position. However, these discussions do not appear to have progressed and it was confirmed that the Complainant's position was being made redundant and, with effect from 23 January 2017, he was on four weeks’ notice.
Summary of Complainant’s Case:
The Complainant's claim centres on his contention that he did not take and/or receive payment in respect of his full annual leave entitlement and did not receive payment in respect of Public Holidays, while working with the Respondent.
The Complainant calculated his annual leave entitlement as follows: 10.54 days for 2015, 20 days for 2016 and one day for 2017, which gives a total of 31.54 days. The Complainant stated that, in all his time working for the Respondent, he only availed of 10 days annual leave, that being two weeks from 9 January 2017 to 20 January 17. Based on these calculations, the Complainant is claiming for an outstanding 21.54 days of annual leave.
With regard to Public Holidays, the Complainant is claiming 14 in total, being 4 for 2015, 9 for 2016 and 1 for 2017.
Summary of Respondent’s Case:
The Respondent contended that the Complainant had full autonomy and responsibility for all operations of the hotel, including his own work schedule and annual leave. The Respondent contends that the Complainant should have taken his holidays.
The Respondent further contended that any holidays not taken by the Complainant was done so with the view to banking payment in lieu for the said holidays for financial gain. The Respondent alleged that in a context where the Complainant was responsible for up to 30 employees, his handling of his own annual leave issue amounted to either gross ignorance of the legislation in relation to holidays or gross incompetence.
The Respondent further stated that the Complainant made no mention of holiday pay at any time during his 18 months of employment and that any effort to now get compensated in this regard was a direct effort to punish the Respondent for terminating the Complainant's contract as GM of the hotel.
The Respondent stated that despite repeated requests for documentary evidence and proof as to the outstanding annual leave, the Complainant had not shown any solid documentary evidence to suggest that he is owed any outstanding holiday pay.
The Respondent stated that when he questioned the Complainant as to why he never took his holidays, he could not offer an explanation other than to say never thought about it. The Respondent stated that when he asked the Complainant if he understood the legislation regarding the Payment of Wages Act, he stated that he had recently read up on it for his own case. The Respondent further contended that when he questioned the Complainant as to whether he thought that, as a General Manager, who was responsible for the hotel operations and its employees, he should have been at least familiar with the basics of the legislation, the Complainant accused the Respondent of bullying.
The Respondent confirmed that the Complainant was never refuse time off during his tenure as General Manager. The Respondent further confirmed that the Complainant was treated fairly and compensated appropriately throughout his employment. The Respondent indicated that this included two performance -related bonuses which were paid despite the fact that the business was making losses.
In conclusion, the Respondent stated that the Complainant received gross payment of €9,426.93 in relation to the termination of his employment. According to the Respondent's evidence this included four weeks’ pay in lieu of notice, as per his Contract of Employment. According to the Respondent, the balance was a goodwill payment to settle the matter with the Complainant, despite the fact that the Respondent did not believe that he owed him anything in relation to outstanding holiday pay.
Findings and Conclusions:
Having carefully considered all of the evidence adduced, I am satisfied that the Complainant only availed of 10 days’ annual leave during his time working for the Respondent.
I note the Respondent's contention that it was the Complainant's responsibility, as the General Manager of the hotel, to ensure that all staff, including himself, took their appropriate annual leave entitlement. I also note the Respondent's contention that he was unaware that the Complainant had not taken his annual leave.
Section 20 (1) of the Organisation of Working Time Act, 1997, clearly states that the granting of annual leave shall be determined by the employer. In addition, I note the following, from the Complainant's Terms and Conditions of Employment, in relation to annual leave: "staff are required to take their annual leave entitlement at times convenient to the business. Request for annual leave should be made to the hotel director, and leave should not be taken, nor arrangements made, until permission has been obtained. The final decision on allocating annual leave rests with the hotel director."
Therefore, on that basis, I am satisfied that the overall responsibility in relation to the taking of annual leave must ultimately rest with the Respondent and that the Complainant's failure to take his full annual leave entitlement and/or inform the Respondent that he was not doing so, does not negate or cancel the entitlement. Consequently, I find that the Respondent is liable for the Complainant's outstanding annual leave.
As has been set out earlier, the Complainant has calculated his outstanding annual leave at 21.54 days. In addition, he is seeking 14 days payment in respect of Public Holidays for which he received no payment.
With regard to the outstanding annual leave, the Complainant's has included a figure of 10.54 days arising from his 2015 entitlement.
Section 23 (1) of the Organisation of Working Time Act, 1997, states as follows:
(a) an employee ceases to be employed, and
(b) the whole or any portion of the annual leave in respect of the current year or, in case the cesser of employment occurs during the first half of that year, in respect of that year, the previous leave year or all those years, 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, calculate the normal weekly rate or, as the case may be, at a rate proportional to the normal weekly rate, that he or she would have received had he or she been granted that annual leave.”
Arising from the above provision, I find that the Complainant's claim for outstanding annual leave must be confined to the leave years 2016 and 2017. Consequently, the Complainant's claim for 10.54 days in relation to his 2015 entitlement cannot be included in the calculation of outstanding annual leave.
Consequently, based on an entitlement, as per the Complainant's Terms and Conditions of Employment, of 20 days for 2016 and 1.66 days for 2017, I find his total entitlement to be 21.66 days. As the Complainant availed of 10 days leave in January 2017, this establishes an outstanding annual leave entitlement at 11.66 days, which when combined with the 14 Public Holidays gives a total of 25.66 days outstanding. Calculated at the daily rate of €219.23 this gives an outstanding amount of €5,625.44.
In his evidence to the Hearing, the Respondent stated that the Complainant received a gross payment of €9,426.93 at the termination of his employment. The Respondent stated that this payment included the Complainant's four weeks’ notice payment and a "goodwill payment" in relation to outstanding payments.
Having carefully reviewed the payroll records provided, I am satisfied that when the notice payment and the payment pertaining to the 10 days’ annual leave, which were taken during the payment period, are deducted from the overall payment of €9,426.93, the balance representing the "goodwill" element of the payment is €2,849.99.
Based on the evidence presented, I am satisfied that the Respondent intended the "goodwill" to relate to the Complainant's claim for outstanding leave. Consequently, I am satisfied that it is appropriate and reasonable to apply this figure of €2849.99 to the total amount due to the Complainant. Therefore, when this figure is applied, I find there are to be a shortfall of €2, 775.45 owing to the Complainant.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Having carefully considered all the evidence adduced and based on the considerations/findings as detailed above, I find in the Complainant's favour in the amount of €2,775.45 in respect of outstanding annual leave and Public Holidays. This amount is subject to the normal statutory deductions applying to salary.
Dated: 16th March 2018
Workplace Relations Commission Adjudication Officer: Ray Flaherty