ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000154

Complaint(s)/Dispute(s) for Resolution:

Act	Complaint/Dispute 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-00000207-001	13/10/2015

Date of Adjudication Hearing: 14/01/2016

Workplace Relations Commission Adjudication Officer: Caroline McEnery

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 following the referral of the complaint(s)/dispute(s) 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(s)/dispute(s).

Complainant’s Submission and Presentation:

The Complainant states that the Respondent is not compliant with the requirements of Section 20(1)C in that the Complainant is not granted his annual leave entitlements within the leave year to which that entitlement relates.

The Complainant was initially engaged by the Respondent as a driver on a seasonal basis in 2004. The Complainants initial contract terminated at the conclusion of the 2004 season. However, he was re-employed in March of 2006 on a full time permanent contract and has remained a permanent member of staff since.

At the commencement of the Complainants terms as a permanent employee the allocation of annual leave was granted by a historical practice within the Company. This practice did not allow for the allocation of paid annual leave within the first year of service. The entitlement of annual leave earned in the first year of service was then allocated in the second year of service and so on.

In simple terms the Company operated a system of a year in hand for the purposes of Annual Leave entitlements. In the Complainants case this practice will remain in operation until the year of his retirement when he will entitled to take an additional year’s entitlement to annual leave.

This historical practice being operated by the Respondent may have met the applicable criteria under the old Holidays [Employees] Acts 1973-1991, however with the implementation of the provisions of the Working Time Act the employer has an obligation to amend this practice. The Respondent chose to ignore that obligation and continued to implement a practice that was clearly non- compliant with the provisions of law according to the Complainant.

Under statute, the Complainant is entitled to take his annual leave in the leave year to which it relates. Under the current operational system in the Respondent he is prohibited from doing so.

Respondent’s Submission and Presentation:

The Respondent is a national Public Transport Company and to meeting the requirements of its services, special arrangement covering the allocation and taking of annual leave have been agreed nationally with the Trade Union representing the Drivers. The relevant clause is in Drivers Change Programme, agreed in June 2000 read as follows:

Arrangements for taking annual leave will be agreed locally. The practices in existence at the time of this Agreement will continue unless altered through negotiations. A flexible approach will be adopted taking account of staff preferences and local business needs. Local consultations will take place regarding variations in the annual leave programme where such would assist in resolving a staffing problem.

Payment for annual leave days and public holidays will be in accordance with the provisions contained in the Organisation of Working Time Act, 1997. Additional drivers on boards which include the working of regular rostered overtime will have the payment for such reflected in annual leave pay on the basis of the average amount earned in the thirteen weeks immediately preceding the date of annual leave. This element of annual leave pay also applies to spare drivers who have worked such boarded overtime within the qualifying period.

The holiday entitlement for drivers is as follows:

With 1 year’s continuous service 20 days

With 5 years’ continuous service 21 days

With 7 year’s continuous service 22 days

With 10 years’ continuous service 23 days

Therefore the Complainants annual leave is as below since he was employed on a full time basis.

2006 0

2007 23

2008 21

2009 21

2010 17

2011 22

2012 22

2013 13

2014 19

2015 24

It is custom and practice but there is no written policy on how employees do not take annual leave in their first year of employment and it has not been agreed nor revised at local or national level as part of annual leave discussions.

It was agreed by both parties that the Company will facilitate requirements for annual leave where practical and are generally very accommodating in this regard in relation to the booking and taking of annual leave.

If the employee wishes to leave in the first year of employment it is unpaid leave taken before or after a rest day.

Decision:

Section 41(4) 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.

Issues for Decision:

Employees should be able to take leave from when they start to accrue it. This leave should be requested and facilitated in line with these allocated blocks and in line with business requirements as per the policy and agreement in place in the Company. Employees should not be prohibited from taking leave in their first year of employment.

The Respondents system of allocating blocks of when leave can be taken is perfectly acceptable and has been agreed by employees and their representatives.

The Respondent noted that the annual leave policy is a result of union negotiation agreed in June 2000.

This Adjudication Officer understands that is essential for a Public Transport Company, with over 2,500 staff to have formalised arrangements in place regarding the allocation and taking of annual leave and they have a comprehensive block system of booking leave in place to ensure it is in line with business and operational requirements. However, it is imperative that the legislation of the Organisation of Working Time Act, 1997 is adhered to also.

Legislation involved and requirements of legislation:

The Organisation of Working Time Act, 1997 Section 20(1)C states:

(1) The times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements and subject—

(c) to the leave being granted within the leave year to which it relates or, with the consent of the employee, within the 6 months thereafter.

Section 20(3) states:

(3) Nothing in this section shall prevent an employer and employee from entering into arrangements that are more favourable to the employee with regard to the times of, and the pay in respect of, his or her annual leave.

Decision:

Following Section 27(3) of the Organisation of Working Time Act, 1997 I have considered under subsection (2) that my decision shall do one or more of the following:

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the employee’s employment

In this case the complaint was well founded. It is evident the Respondent is not in compliance with the Organisation of Working Time Act, 1997 Section 21(1)C.

It the decision of this Workplace Relations Commissioner that the employer must now comply with the relevant provision.

In reference to Section 27(3)C of the Act this practise should be addressed going forward. It is a recommendation that any back log of the accrued annual leave should be booked by staff in line with the current approval system and taken in the next three years in line with business requirements. Alternatively any back log of the accrued annual leave can be paid to employees if it is not operationally feasible to give them the leave in this time frame.

The case succeeds and is well founded. No award is granted as the employee was not at a loss in this regards and this was the first forum this complaint was raised in.

Dated: 25th February 2016