ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003608

Complaint and Dispute for Resolution:

Date of Adjudication Hearing: 12/10/2016

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015, Section 27 of the Organisation of Working Time Act, 1997 and Section 13 of The Industrial Relations Act, 1969, following the referral of the complaint and dispute to me by the Director General, I inquired into the complaint and dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint and dispute.

Complainant’s Submission and Presentation:

The complainant commenced work as a Customer Service Agent on a full time basis on October 20 2014.The companies transferred its undertakings to the respondent on December 1, 2014. He was paid €388.00 per week. He concluded his employment on June 29, 2016.

The complainant was out sick on work related stress. Prior to this he had booked a portion of his annual leave and this co-incided with his recorded sick leave which was supported by a Medical Certificate, accepted by the company.

The days where holidays and days of illness co-incided were

• 29 January 2016

• 1,2,3,4,5,8 and 9 February, 2016 ( In total 8 days )

It was not a typical practice for the company to pay sick leave, but they did on this unique occasion. The company denied the complainant paid holidays for this period of 8 days on his return to work, stating that if he took the holidays, he would not be paid for them as they had already been paid to him when he was on sick leave.

The complainant did not get the benefit of his annual leave for the 8 days in question before ceasing employment with the company on June 20, 2016.

The Union, on behalf of the complainant contended that he did not get the benefit of his annual leave for the 8 days in question .As he held an entitlement to annual leave , they argued that the only way that he could now benefit was through payment of the 8 days in question .

Respondent’s Submission and Presentation:

The respondent disputed the claim. They introduced the company as being a subsidiary of an Indian Company, employing over 1,400 people. The respondent submitted that the work done is particularly sensitive to a high attendance pattern as the company works to strict targets, deviation from which results in certain financial penalties. It is a Unionised employment.

By way of background, the respondent confirmed that the complainant had been dismissed from his employment on 28 June 2016 and the matter was before the WRC to be dealt with in due course.

The respondent described a serious absence problem in the complainants work history .From January 1 to date of dismissal, the company recorded an absence record of 64 days from a possible total of 130 working days where he was scheduled to work .(i.e49% absence rate) .

The respondent submitted that paid sick leave was not a condition of service .They outlined that the complainant had applied for annual leave between 31 January 2016 and 9 February, 2016, this leave was approved and recorded in the time and attendance system as “ paid leave”. Due to an administrative error, the complainant was paid in error for the annual leave which should have been “ unpaid sick leave “ and he would have been entitled to take his leave at a later date .The overpayment amounted to 8 days .

On the complainants return to work, the complainant was advised of the overpayment .On 23 May, the company received a letter from the complainants Union asking that “arrangements are put in place, so that these holidays can be taken in the future “.This Union was not the Union with whom, the company had agreements.

The company put two options to the complainant

1 Repayment of amount covering annual leave paid in error under a phased repayment plan. Annual leave would then be reaccredited

2 A future period of unpaid leave where no repayment of Jan/Feb would arise.

The respondent stated that both options were rejected by the complainant, who preferred to submit the matter for Adjudication.

The respondent drew attention to a clause in the complainant’s contract of employment

“The company ….. Reserves the right to make a deduction from your final salary or any other monies due from us to you in respect of holidays taken in excess of the entitlement.

The complainant was dismissed and no repayment arose.

The company contended:

There was no contractual obligation on the company to pay sick leave. The payment made to the complainant was in error. He refuse to engage on rectification for this mistake .The company was opposed to the complainant demanding access to 8 more annual leave days than he was due .The company asked the Adjudicator to find in their favour .

Decision: Organisation of Working Time Act Claim: CA-00005246-001

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act. Section 27 of the Organisation of Working Time Act 1997 requires me to make a decision in the case.

I have listened carefully to and considered both parties submissions .I am mindful that there is no live employment relationship between the parties .The date of claim before the WRC is 16 June, 2016, within the statutory time limit for such claims.

The Organisation of Working Time Act 1997 was amended by Section 86(1) of the Workplace Relations Act 2015 for the purpose of permitting

1 Statutory annual leave entitlement accrues during a period of certified annual leave. There is a carry over period of 15 months.

2 On termination of employment, payment in lieu of untaken accrued annual leave applies to leave untaken as a result of illness in circumstances where the employee leaves the employment within a period of 15 months following the end of the leave year during which the leave accrued.

The complainant was dismissed short of two weeks post lodging of his complaint and I was informed that the matter was not addressed at the time of his termination of employment.

The ECJ has considered several permutations and combinations of this issue .I have quoted case law sourced on the annotated legislation.

In Case C-350/06, Schultz-Hoff [2009] E.C.R. 1-179, the Court of Justice went further and ruled that the right to be paid annual leave pursuant to Art.7 could not be made subject “by a Member State to a condition concerning the obligation actually to have worked during the leave year”. Accordingly annual leave accrued even though the employee was on long term sick leave and he or she was entitled to be paid in lieu for this leave at the time of termination of employment, notwithstanding that they had not worked during the leave year.

Subsequently, in Case C-227/08, Pereda v Madrid Movilidad SA [2009] E.C.R. 1-8405, the Court of Justice ruled that an employer cannot require an employee to take their annual leave when they are off work sick and that, where an employee does not wish to take annual leave during a period of sick leave, annual leave must be granted for a different period even if that is in a different leave year.

The court went further in Case C-78/11, Asociación Nacional de Grandes Empresas de Distributión (ANGED) v Federación de Asociaciones Sindicales [2012] I.R.L.R. 779 and ruled that a worker was entitled to take paid annual leave which coincides with a period of sick leave at a later date, irrespective of the point at which the incapacity for work arises:

In the instant case , both parties accept that the payment of the sick leave over an 8 day period was a first for the company .However, while the respondent contends it would be unfair and inequitable for the company to recognise this time” on the double”.

I find that this issue should have been addressed by the parties as cessation of the complainant’s employment. I find that it was unreasonable for the complainant not to at least explore a basis for discussion on the two options. I appreciate that he asked the company for a 50% settlement as an opportunity to rectify at the end of his contract but a certain amount of mutual disharmony militated against a resolution.

I must accept that the complainant was unable to benefit from his annual leave while sick, which was the scenario grounding the 2015 amendment to the Act .I am satisfied that the overpayment should have been actioned by the respondent as a parallel issue as it has clouded the core issue of was the complainant afforded the benefit of annual leave.

Section 19(2) of the Act states:

A day which would be regarded as a day of annual leave shall, if the employee concerned is ill on that day and furnishes to his employer a certificate of a Medical Practitioner ……not be regarded for the purposes of this Act , as day of annual leave .

I find that this mirrors what happened in the complainant’s case and I must therefore find his complaint to be well founded. The complainant confirmed that he had received illness benefit to cover the core 8 day period.

I have considered all the circumstances of the case and in accordance with Section 27(3) of the Act, I order the respondent to pay the complainant €400.00 as just and equitable compensation.

Recommendation: Industrial Relations Claim: CA-00005246-002

Section 13 of the 1969 IR Act requires me to make a recommendation in this case.

The claim submitted under this piece of legislation has been addressed by me in the primary claim under the Organisation of Working Time Act, 1997.

I have heard the parties to the Dispute and find that the claim has been addressed earlier in the document. This claim cannot therefore reasonably succeed.

Patsy Doyle, Adjudicator.

Dated: 9^th February 2017