The mistake made in bringing this ‘holiday pay’ claim to the WRC (Workplace Relations Commission) is an easy one to make.
The complaint arose from a term of the contract of employment which stated, “If you work for at least 365 hours during the holiday year you will receive a paid holiday entitlement of four weeks during the complete holiday year”.
This was a mistake and what should have been included was “If you work for at least 1,365 hours during the holiday year you will receive a paid holiday entitlement of four weeks during the complete holiday year”.
Therefore, the claim that followed should have been pursuant to a breach of a term of the contract of employment, not a breach of the Organisation of Working Time Act 1997, and should have been brought under the Payment of Wages Act 1991.
The solicitor acting for the complainant held her hands up and admitted the mistake in ticking the wrong box on the WRC online complaint form, the Organisation of Working Time act box. This is an easy mistake to make for the Organisation of Working Time act 1997 gives the statutory entitlement to paid annual leave and the dispute in this case concerned the failure of the employer to pay the full holiday entitlement, as per the contract.
However, as it was a contractual entitlement that gave rise to the claim it should have been brought under the Payment of Wages Act 1991 for non-payment of wages, or unlawful deduction.
The solicitor representing the complainant applied to the adjudication officer to amend the complaint to the correct act and the adjudication officer, despite arguments from the employer’s representative, agreed to the change.
At the reconvened hearing of the substantive matter the employer made the strong case that the term in the contract was manifestly a mistake and the employer should not be bound by it.
The authenticity of the contract put forward by the complainant was also called into question and the respondent’s representative described the claim as ‘cynical, frivolous and vexatious’.
Decision of the Adjudication Officer
The AO decided that the contract is the foundational base for entitlements and obligations in the employment relationship. A mistake was made by the employer in drafting the contract in writing “365” hours rather than “1365” hours into the contract and triggering an entitlement to four weeks paid holidays.
The Payment of Wages Act 1991 does not allow the varying of a term of a contract of employment, and a third party cannot make any change to said contract either. The adjudication officer found that the complaint was well founded and awarded €1,200.
Reference was made to the Marek Balans v Tesco Ireland Ltd [2019 No. 83 MCA] in which the High Court held that the Payment of Wages Act 1991 does not allow for the rectification of an error in a contract by way of unilateral repudiation of the contract by the employer.
There were other arguments about the time limit for bringing the claim and whether leave that was carried forward from previous years could be included in the claim that was ultimately made.
Read the full decision in Ciara Daniel against Maximus SOS Limited t/a Offbeat Donut here.