In Gouveia v RG Buesnel Ltd (2012), Gouveia claimed that he had not been paid for holidays during his employment.
The Respondent said that Gouveia's holiday pay was "rolled up" in his hourly wage, that Gouveia had known this and that, through Tribunal proceedings, he was now looking to exploit a deficiency in his contract of employment.
The contract included the following term:
"…the company does not pay sick pay, holiday pay...Company holidays are the last 2 weeks of August and between Christmas and New Year, which are unpaid."
In the absence of documentation or witness evidence corroborating RG Buesnel's position, the Tribunal said:
"…there is a written contract which is clear and unambiguous; none of the circumstances in which a term may be implied into a contract fits this case. Had there not been this written contract, there may have been room to imply a term such as that suggested by [RG Buesnel], but the existence of the written contract puts this case on a completely different footing from the Velosa case."
The Respondent was ordered to pay Gouveia back pay for his paid holiday entitlement (approximately £3,000 over 4 years).
The judgment in Gouveia is a good example of how inaccurate drafting can leave an employer without a means of proving exactly what has been agreed between the parties. If RG Buesnel had paid Gouveia extra per hour to reflect his entitlement to holiday pay the contract did not provide evidence of this and, as a result, Gouveia was entitled to treat any uplift as forming part of his basic hourly rate of pay only.
RG Buesnel was later subject to a claim by another employee on the same terms, which it also lost. The defective drafting cost RG Buesnel Ltd, a small business, a total of £5,500.00 in holiday pay claims. The judgment serves as a warning to employers to make sure that employment documentation not only complies with the Employment (Jersey) Law 2003 but also that the terms set out in such documentation are clear, unambiguous and accurately reflect the basis on which the employee is employed.