Complainant

Respondent

Parties

Suzanne  Heap

Irwin Kilcullen Solicitors & Co.

Representatives

  Self-represented

 Self-represented

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-00069445-001

20/02/2025

The Complainant worked for the Respondent as a legal secretary from 21/01/2025 until 20/02/2025.

She handed in her notice to take up employment elsewhere.

She submits that she has untaken outstanding statutory annual leave for which she did not receive payment, at the end of her employment, which dates back to 2021.

The Respondent, a firm of Solicitors, denies the Complainant’s claims and submits that nothing outstanding is due and owing to her; that based on its calculation, it submits that the Complainant has actually taken more annual leave than her statutory entitlement.

Both sides submitted written submissions in respect of the matter along with supporting documentation. At hearing, the Complainant gave evidence on her own behalf and Mr. Richard Irwin, Solicitor Partner of the Respondent firm Irwin Kilcullen & Co. Solicitors gave evidence on behalf of the Respondent.

As per the complaint form, and the Complainant’s written submissions:

The Complainant submits that she was not paid her correct pay, pertaining to untaken annual leave, upon termination of her employment. The Complainant submits that in 2021, due to Covid, she had four (4) days’ untaken annual leave, which she rolled over at the end of each year (2021, 2022, 2023 and 2024) and that at the end of her employment in February 2025, that she sought to be paid for those four (4) days. The Respondent declined on the basis it said they were not owed, which it set out by email to the Complainant.

There were a series of emails back and forth. For completeness, the Complainant submits that in her final email to Mr. Irwin, she asked him to pay her for the 2025 holiday and the half (0.5) day she had left from 2024 which equates to two (2) days’ pay. The Complainant received two (2) days’ pay only in her final wage, in respect of untaken outstanding annual leave.

The Complainant also expressed broader feelings of dissatisfaction at how she was treated at the end of her employment, highlighting that no leaving meal or parting gift were arranged for her something she found very disappointing, having worked there for four (4) years.

At the hearing, the Complainant, Ms. Suzanne Heap, took the oath and gave evidence on her own behalf.

She outlined that she worked for the Respondent firm of Solicitors for four (4) years, as a legal secretary. She handed in her notice in mid-January 2025, providing her employer with four (4) weeks’ notice. While she was working out her notice, she sent an email to ask about four days’ pay she said was outstanding to her; that each year dating back to 2021 (Covid), she had saved and carried forward four (4) days’ annual leave. She said nothing was said to that email, and certainly not while she was in the office. She said that before the last weekend, when she was working from home, there was an email exchange.

The Complainant explained that in 2024, she had a half (0.5) day of annual leave outstanding, and that she worked January and February, she said that she was paid whatever that equated to, which was approximately two (2) days’ pay.

The Complainant outlined the origins of the days of untaken annual leave which she says were still outstanding and unpaid at the end of her employment. She said that they dated back to 2021 (Covid). She explained that in 2021, she had twelve (12) days’ annual leave entitlement, of which took eight (8) and had four (4) days left over. She clarified that this was from the Respondent, her then employer, not pertaining to any previous employment, as had been suggested. She explained that she initially started work on a three day week, and then went to a four-day week in January 2023 when requested, with one day working from home. She explained that she was job sharing.

The Complainant addressed the point in relation to holidays over the Christmas period. The office closed over the Christmas period. She submitted that while it may be in the contract of employment, that Christmas is accounted for, within the contractual holiday entitlement, that was not the practice, at any point during her four years in employment there. She said all staff (including her) took their full holiday entitlement and did not account for Christmas. She said that there was no email telling people to keep back days for Christmas etc. She acknowledged that was very accommodating and generous in relation to Christmas. She said that it was her view that there was a ‘reason found’ not to pay her for the four (4) days, that staff that had left previously had not been asked to consider Christmas when assessing outstanding annual leave.

In relation to the carrying over of annual leave days from on year to the next, and Mr. Irwin’s submission that it is not something he agrees to for staff, the Complainant submitted that she reminded him every year, and he confirmed it every year. [Mr. Irwin disputed this – he said that he did not think that was the case.]

The Complainant said she thought it was unusual, if things on the ground were as set out in the contract of employment (i.e. that days have to be kept back for the Christmas break), that no-one had raised that with the Respondent, at any point. She said, of the idea that staff had to retain days to cover the Christmas closure: ‘It’s just not the truth. Everyone went out the door, happy to go on their break, which is why no-one raised it.’

At the hearing, Mr. Richard Irwin, Solicitor Partner, took the affirmation and gave evidence on behalf of the Respondent.

He said that the Complainant told him she was going to another firm and she gave him her notice. He said that she sent an email to him saying that she had 4.5 days’ pay due to her. He said that he accepted that, that he does not normally check these things, but that when he examined this, she had already received more than the statutory amount of holidays in the year. He said that the Complainant seemed to be referring back to holidays she had from her previous employer pertaining to 2021, [This is denied by the Complainant; All holidays pertain to this employment.]; and that she wanted to use those days to travel to see her mother who wasn’t well, if required. He said that there was no difficulty getting time off, if her mother needed help on an emergency basis. He said he was very surprised to find the suggestion of four (4) outstanding days of annual leave, dating back to 2021. He said that the carrying over of annual leave is something that he generally does not agree to, for staff.  

He outlined that the Christmas period was dealt with as part of the annual leave, as set out in the contract of employment. He said that the firm closes at Christmas, in line with the Southern Law Association (SLA) holidays – he said that the SLA has its meeting, they say what the official holidays will be and part of that is holiday pay (paid leave). He explained that during the closure, some days are bank holidays (paid public holidays) and some are paid annual leave days; that different staff depending on their working pattens are impacted differently, depending on how Christmas falls.

He accepted the correspondence relating to October 2022, in which the Complainant asked if she did not use her four (4) days in the next few weeks, could she roll that over to next year (2023), and to which he responded in the affirmative but emphasising that he did not want an extended absence at a crucial time. He didn’t refer it back to 2021. He said that he did not agree to that.

He outlined that in the submissions he had submitted to the WRC, he had included his calculations – he said that the Complainant’s entitlement for the period she was in employment was 61.5 days and she took 65 days. He said they had a disagreement about this – he said that when he found that he was being asked for an extra four (4) days, he felt that this was wrong; so, he went back and he checked the records. He believes, having gone through his records, that she has actually taken more days than her statutory entitlement.

He said that, as a compromise, he offered to pay for an extra two (2) days, but that offer was rejected. He said that the Complainant was working from home the last week, for which she was paid, and he did not send her any work the last two (2) days.

Mr. Irwin said that he did not create an issue with staff in relation to holidays, that it is ‘only if they are going over the top’, that he would ‘take a look at it.’ He explained that the main issue was the need for cover, and that the staff agreed amongst themselves, who was taking what days, so as to ensure cover for the firm.

He said that, in support of his position, he had submitted to the WRC his emails in 2022 and 2023 advising the staff of the holidays. The email (14/12/2022) sent to all the firms staff sets out the Christmas holiday closure dates and states: ‘This has different implications for each of you in respect of holidays.’ He said in relation to 2023, as per the SLA Christmas period closure dates, the firm re-opened post–Christmas on Wednesday, January 3rd. He said: ‘If anybody had any issue with that. I’m quite accommodating when staff are pulling their weight. But, by my calculations, Suzanne had gone over her statutory entitlement.’ He said that, in the circumstances, he said: ‘Look, I’ll compromise, I’ll give you two [days].’

He said that it was not communicated to him annually and that he certainly did not acknowledge it. He said that when the Complainant emailed in October 2022 about the 4 days, he thought it was in relation to that year.

The contract of employment submitted, sets out (at paragraph 3, 8 & 9 respectively) :-

3. Hours and Place of Work

The normal hours of work are 3 days per week, 9.00 am to 5.00 pm, commencing 9.00am daily, there is a break for lunch from 1 pm to 2pm.

Overtime (other than as set out in 5 below) is not payable. A tea break is allowed in the mornings for 15 minutes (usually taken around 11.00am) and 10 minutes in the afternoon.

The place of work will be the Firm's premises at 56 Grand Parade Cork. You may also be expected to occasionally work outside the office attend at other buildings the purpose of your work at the discretion of the Firm.

8. Vacation

The Firm's vacation year operates from the beginning of January to the end of December "the calendar year" in compliance with the organisation of working time Act 1997 and any amendment and the following vacation arrangements will apply: -

(a)    Annual leave entitlement will be 20 working days per annum or a proportionately lesser number of days for less than a full years' service usually taken as a week at Christmas and two weeks annual vacation and the balance by arrangement. This leave entitlement does not include Good Friday, Christmas Eve and all public holidays.

(b)   Public Holidays are New Year's Day, St. Patrick's Day, Easter Monday, First Monday May, first Monday in June, First Monday in August, Last Monday in October, Christmas Day and St. Stephens Day.

(c)    The taking of your vacation entitlements will be in accordance with Firm Policy and must be agreed in advance with the Managing Partner.

(d)   Vacation days may not be brought forward from year to year. Holidays must be taken within the calendar year or within the six months following that agreed in advance by the Managing Partner and will be forfeited in the event that they are not taken within that time.

9. Sick Leave

If you are absent from work due to illness the Firm will require immediate notification from you. During illness the following salary arrangements will apply:

The Firm will pay for the first three days illness and may request that a Medical Certificate presented by the third day of absence and the illness is confirmed by a doctor. This is subject to a maximum of six days per annum. Voluntary sick allowance may be paid at the discretion of the Firm. This allowance will amount to not more than full salary less monies receivable by you from the Department of Social Welfare.

For completeness, the Respondent firm outlined in its written submissions, that a leaving ‘do’ is only organised by the firm if the person is not taking up employment with a competitor, if for example, the employee is leaving to study, change career, relocate or leaving for family reasons. It was submitted that the staff may choose to organise something amongst themselves, where someone is leaving to take up similar or identical employment with a competitor located adjacent to the firm. (The Complainant characterised this submission as ‘bizarre’, in her written submissions.)

This is a somewhat regrettable situation. The parties appear to have worked happily together for four (4) years. It is unfortunate that a period of employment coming to an end because the Complainant handed in her notice and was taking up employment elsewhere – something that happens in the ordinary course in employment relationships - would thereafter unexpectedly erupt into hard feelings and recriminations.

I understand how the Complainant thought that she had statutory outstanding annual leave days dating back to 2021, which occurred in the context of Covid. She requested that she be allowed to roll those over from 2021 to 2022. That was acknowledged in an email in 2022 from Mary Irwin to the Complainant, which sets out at the last paragraph: ‘I’ve also checked the holiday situation for you. The position in this firm is that we’re allowed four weeks holidays per annum, plus bank holidays. The holidays are usually taken as two weeks summer holidays, a week at Christmas, and one other week. If you work a 3 day week, your week’s holiday would be 3 days off. Now, that you’re working a 4 day week, each week’s holiday is 4 days long. So, if you’re taking two weeks holidays, you would be missing for two weeks, you would be paid for the two weeks. It’s a bit difficult to put into writing – I can discuss it with you when I see you. I understand that you are also carrying forward 4 days from last year.’

It seems to me that the breakdown in communication occurred in 2022.

An email from the Complainant to Richard Irwin, Solicitor Partner, dated 17.10.22 says:

‘Richard,

I have four days holiday left, If I don’t need to take them for something in the next few weeks, can I roll them over to next year please?

Suzanne’

And his response, on the same date, stating:

“Yes, of course Suzanne,

Please remember timing is everything so let me know as soon as you can what your plans are.

Richard”

The Respondent expressed the view that the Complainant availed of those days between that email and the end of 2022, two of them during the Christmas closure.

There was a further email submitted in November 2023, with respect to rolling those four days over to 2024, in which the Complainant says: ‘Also, I have 4 days left which were rolled over from the previous year and I would like to roll these over to next year. I have kept them on purpose in case of emergency regarding my Mum in UK.’, and confirmation, from Richard Irwin, in respect of those, which states: ‘There is no difficulty with rolling over holidays but I do not want to end up with an extended absence at a crucial time.’

A further email dated 11/12/2024 from the Complainant to Richard Irwin was submitted, in which she says: ‘I have 4 ½ days left holiday so if you don’t mind me rolling them over to next year as usual as I save them in case I have to go home urgently.” No response to that email was submitted. The Complainant handed in her notice in January 2025, giving four (4) weeks’ notice, and finished up her employment in February 2025.

The Complainant’s contract of employment makes provision for the rollover of annual leave, with the consent of the employer within 6 months of the new leave year; and it specifies that has to be approved by the Managing Partner.

It seems likely from the email exchanges submitted and the evidence at hearing that had there been a family emergency of the type contemplated, necessitating the Complainant to travel to England, that she would have been facilitated by her employer in taking paid leave to accommodate that emergency situation. The Complainant has given a number of examples in relation to both herself and other staff members where she says that annual leave (either provision or pattern) was more generous at the Respondent firm, that either the provisions of the Organisation of Working Time Act 1997, or her contract of employment, or both. She submits that days pertaining to the Christmas shutdown (based on the annual Southern Law Association (SLA) dates re: Christmas closure) should not be counted towards the annual entitlement of annual leave days. The Respondent disputes this and points to both the contents of the contract of employment and to an email, in which he informs staff of the dates of the Christmas office closure, and states that this will have different implications for different staff members.

The issue arose when the Complainant sought to receive payment for the days at the end of her employment, on the basis that they were untaken annual leave days, which prompted the Respondent to do a check of the records of days taken. It is the Complainant’s perception that both the lack of meal/gift and the refusal to pay her the outstanding annual leave was because she had handed in her notice and was taking up employment elsewhere. Her view is that ‘a reason was found.’

The Organisation of Working Time Act 1997, under which this complaint is filed, sets out the statutory entitlement to annual leave of 8% per annum of hours worked, capped at 20 working days per year. The Complainant’s contract of employment sets out annual leave entitlement at 20 days per year or ‘a proportionately lesser number of days for less than a full years' service.’ It was common case that annual leave was applied on a pro-rata basis in respect of part-time staff. When the Complainant worked a three-day week, she had twelve (12) days annual leave per year. When she worked a four-day week, she had sixteen (16) days annual leave per year. Having carefully read the contract of employment, as drafted, it specifies that annual leave is ‘usually taken as a week at Christmas and two weeks’ annual vacation and the balance by arrangement.’ It states that a pro-rata amount of annual leave applies for less than a full year’s service. The pro-rata distinction between full time and part-time employees is not set out.

The contract of employment sets out that the Respondent firm’s leave year runs from January to December. The Complainant filed her WRC complaint on 20/02/2025. Having examined the documentation submitted and considered the evidence given at hearing, I find that even taking the Complainant’s calculations at their height, the Complainant had fully availed of her statutory annual leave entitlement, pertaining to the relevant leave year (2024) – it is her case that she took 15.5 days in 2024 and was paid for the remaining 0.5 day at the end of her employment. By the Respondent’s calculation (including the days during the Christmas closure), the Complainant took 18.5 days paid annual leave days in 2024, when she had an entitlement to 16; and was also paid in respect of the 0.5 day she said was outstanding at the end of her employment, pertaining to 2024. It is common case, that the Complainant was also paid in respect of a pro-rata entitlement to untaken annual leave in 2025, amounting to 1.5 days. Therefore, it follows that, at the conclusion of her employment, that the outstanding annual leave owed to her (2 days) was correctly paid at the end of her employment.

A further offer to compromise equal to two (2) days’ annual leave was made by the Respondent and rejected by the Complainant.

I accept the evidence given on behalf of the Respondent that the email exchange in October 2022 did not indicate that the leave related to 2021 (or leave rolled over from 2021). There is a requirement that leave rolled over has to be used within the first six months of the next leave year; otherwise, it is forfeited. It also, as per the Complainant’s contract of employment, has to be approved by the Managing Partner. This mirrors the provision in the Organisation of Working Time Act 1997, which allows for the carrying of annual leave, on consent, into the first six (6) months of the next year.

It was agreed by email in October 2022, with Mr. Irwin, Solicitor Partner, that the Complainant could roll outstanding leave from 2022 into 2023 – however, I find that she had no statutory leave outstanding. She had used her full statutory entitlement in that leave year, even before accounting for the period of Christmas closure. The Complainant’s email of October 2022 does not actually set out what she submits it says. Hence, my view that this is the point at which the breakdown in communication occurred.

In November 2023, the email the Complainant sent set out that ‘…I have 4 days left which were rolled over from the previous year’ – the previous year, in this instance, being 2022 – ‘and I would like to roll these over to next year...’ The response from Mr. Irwin, in respect of that says: ‘There is no difficulty with rolling over holidays but I do not want to end up with an extended absence at a crucial time.’ Again, in 2023, the Complainant had taken her full entitlement (of 16 days), even before accounting for the period of Christmas closure (which puts the tally at 18).

I find, having examined the records submitted that the Complainant received her full complement of statutory entitlement to annual leave in the relevant leave year (2024), and further that that correct outstanding untaken annual leave allowance (0.5 + 1.5 days) was paid to her, at the conclusion of her employment, in February 2025.

CA-00069445-001: I find for the Respondent.

The WRC’s jurisdiction under the Organisation of Working Time Act 1997 is limited to statutory entitlement with respect to annual leave. I therefore find that this complaint is not well founded.

For the reasons outlined above, I find that the Complainant received – at a minimum - her full complement of statutory entitlement to annual leave in the relevant leave year (2024), and further that there was no shortfall in respect of the monies paid to her with respect to outstanding untaken annual leave (0.5 + 1.5 days), at the conclusion of her employment, in February 2025.

Pay; Annual Leave;