Complainant

Respondent

Anonymised Parties

A Pastry Chef

A Bakery Company

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-00009579-001

07/02/2017

On February 7, 2017 the Complainant lodged a claim for unpaid annual leave on cessation of employment .The Respondent rejected the claim.

The Complainant is a Polish National who commenced work with the respondent on 15 October, 2007, working her way up to being a Pastry Chef on €12.00 per hour. The Union on behalf of the complainant outlined a claim for 24.23 days of unpaid annual leave and sought payment of €2,438.40 based on a period of certified sick leave related to a back injury. The period claimed covered 14 October 2015 to 15 January 2017. The Complainants Union had approached the Respondent for payment. The complainant’s employment was terminated on 15 January 2017 and she had been denied cesser pay.

The Complainant   confirmed that a Personal Injuries case was running in parallel to this claim .The complainant had been in receipt of Illness Benefit of 217.80 euro from 22 October 2015- 2 March 2017 and submitted a Statement of Recoverable Benefits and Projected entitlements from The Department of Social Protection .

The Complainant denied that she had been working during her sick leave and gave evidence that she was an acquaintance of the Families mentioned .The Complainant contended that the difficulties expressed by the respondent in respect of her medical certificates had never been raised during the course of her employment .The Complainants representative submitted that the complainant would have been open to discussing this issue during their meetings and there was no reason to “ disbelieve the medical certificates”.

The Respondent commenced in the Bakery and Café business in 2005.The Complainant started work as a kitchen porter in 2007 and moved to the Pastry Chef role.

The Respondent disputed the complainants entitlement to claim for annual leave both during the course of 2015 and between the periods of 14 October, 2015 and 15 January 2017.The Respondent submitted that the complainant was also engaged in a personal injury case against the company in respect of an alleged burn to her arm and back injury in September 2015. The Respondent submitted that the complainant had not placed the company on notice of these incidents and contended that she lacked credibility.

The Respondent confirmed that the complainants average earnings for 2012, 2013 and 2014 , where she worked full years amounted to :

30,907 euro Gross per annum.

26,345.00 euro nett per annum

The Respondent submitted that the complainant had received 26 days leave up to October 2015, which consisted of 6 days carried over from 2014 and 20 days from 2015 .The company disputed any further entitlement to annual leave for that year.

The Respondent had sought a breakdown on the origin of the claimed amount of 2,438.40 from the Union, but had not received a response.

The Respondent acknowledged that the complainant had submitted medical certificates to cover her period of illness .The Respondent submitted that it was incumbent on her to prove the veracity or truthfulness of such medical certificates and suggested that the only evidence that could be accepted by an Adjudicator was the oral evidence of the GP in question .The Respondent had not been contacted by the Department of Social Protection in relation to the complainant.

The Respondent pointed to the wide variety of illnesses incorporated in the medical certs, none of which referred to the alleged severe burn. The Respondent stated that the Occupational Health Physician and the Company Accountant were both on stand by for the hearing, but were not called to give evidence.

The Respondent also drew the attention of the hearing to a history of an allegation of bullying made against the complainant in 2015. In particular ,they mentioned the Minutes of a Welfare Meeting held on 10 October , 2016 where the complainants previous comments about the business were subject to discussion .The Respondent pointed to inconsistencies in the complainants statements at that time which placed doubt on her credibility .

The Respondent submitted an Occupational Health Report dated 28 September 2016, where the Occupational Health Physician reviewed the complainant and summarised her condition .The Respondent pointed to a variance in relation to the sick leave records submitted and this rendered the certs valueless and sought that the claim be thrown out.

The Respondent also submitted that the complainant was working during her sick leave .The Respondent submitted that

1 The Complainant worked at a Café on November 2, 2016. This was observed by the owners

2 The Complainant was working in Private Family homes on 14, 16,21, and 23 September and 12, 14 and 21 October 2016

The Respondent had sought that the owner of the Café attend the hearing , but did not receive a response .The Respondent understood that subpoenas for witnesses were not open to them at an Adjudication hearing .

The Respondent contended that the claims were unfounded and should be dismissed due to issues relating to the complainants credibility.

Some time after the hearing On May 4, 2017, the Respondent submitted a copy of an email from a named person associated with the Café where the respondent saw the complainant. The Email stated that the complainant had undertaken a trial of employment but had not worked there or been paid for her time. The Respondent countered this by way of email dated May 6, 2017 when they submitted that the complainant had been observed by the owners to be approaching the Café “ on a range of dates “ and sought to reconvene the hearing .

The Respondent also submitted a copy of the contract of employment and the letter of dismissal dated 13 December, 2016 which were shared with the complainant.

The Respondent concluded by submitting that there was no basis to either of the claims under the Act based on the correct leave recorded for 2015 and the valueless medical certificates.

I have carefully considered both parties’ oral and written submissions in this case .At the conclusion of the hearing; I sought further documents from both parties. I sought a record of annual leave retained by the respondent, a copy of the contract of employment and what ever submissions the respondent wished to make on the Café Owners role in the case. I sought a copy of the record of illness benefit and any Department of Social Protection Medical Reports received by the complainant for the cognisable period of the claim.

I am grateful to the parties for these submissions which were exchanged between the parties. I saw no basis to reconvene the hearing as I had sufficient evidence and documentation before me to reach a decision in this case.

Section 86(1) of the Workplace Relations Act, 2015 amended ss.19, 20 and 23 of the Organisation of Working Time Act , 1997 , so as to comply with the decision of the CJEU in Schultz - Hoff v Deutsche Rentenversicherung Bund (C-350/ 06) [2009] E.C.R. I-179; [2009] 2 C.M.L.R. 27 on the accrual of annual leave while on sick leave .

Section 86(1)(a) amended Section 19 of the Organisation of Working Time Act, 1997 when it provided that

For the purposes of this section, a day that an employee was absent from work due to illness shall, if the employee provided to her employer a certificate of a registered medical practitioner in respect of that illness , be deemed to be a day on which the employee was

(a)    At her place of work or at her employers disposal and

(b)   Carrying on or performing the activities or duties of her work.

Section 86(1)(c ) amended Section 23 of the Act ,when it provided that

Where an employee ceases to be employed and the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee, the employee shall as compensation for the loss of that annual leave, be paid by her employer an amount equal to the pay calculated at the normal weekly rate.

This means that on termination of employment, payment in lieu of untaken accrued annual leave will apply to leave which was untaken as a result of illness in circumstances where the employee leaves the employment with a period of 15 months following the end of the leave year during which the statutory leave entitlement accrued.

The Complainant had a contractual entitlement to 20 days annual leave per annum. It was common case that she received an hourly payment of 12 euro.

I am satisfied that the payslips submitted confirm that 26 annual leave days were received for the calendar year of 2015. This confirms the respondent’s evidence in this regard .I find that the complaint is not well founded in that regard.

I have considered the extensive submission from the Respondent on the reason why the complainant should be denied annual leave as a cesser payment. I was struck by the respondent’s efforts to introduce me to the Personal Injuries action running in parallel with this case and in line with the Court of Appeal findings in Culkin V Sligo County Council and IHREC 2017 IECA 104; I accept that each is a separate cause of action. However, I had cause to advise the parties that I was not prepared to allow this Adjudication Hearing to become mistaken for  a dress rehearsal for any forthcoming personal injuries case. I have confined my reasoning to the facts submitted by the parties under the Organisation of Working Time Act, 1997, as amended.

The Respondent made a series of elaborate submissions to support the strongly held view that the complainant was not a worthy beneficiary of cesser pay due to her work pattern through sick leave. This was denied by the complainant I was disturbed to hear that the respondent had admitted to following an employee in a surveillance manner. However, I was further taken aback given the respondent earlier submissions on their observations of the complainant’s multi locational presence at family homes, that this information obtained was not put to the complainant under the umbrella of constitutional fair procedures during the course of 2016. I have concluded that there was insufficient evidence before me to prove that the complainant was working during the period of sickness .It is permissible to call witnesses to a hearing under this legislation. I cannot accept random emails with no probative value as evidence in this case.

I sought the Department of Social Protection records for the cognisable period and I am satisfied that they support a record of continuous sick leave supported by DSP Medical assessment in December 2015 .

I reject the Respondents assertion that medical certificates cannot be relied on in evidence for the purposes of this case outside the direct evidence of the scribe. I accept that the complainant complied with the contractual requirements on sick leave by furnishing medical certs .The Respondent drew my attention to the minutes of a Welfare Meeting held with the complainant on October 10, 2016 .It was submitted that the respondent was scoping out the complainants potential to return to work and where the complainant disputed the results of a medical examination and disagreed her earlier analysis of the company .I am at a loss to understand why the topic of annual leave during sick leave was not raised by either party at this meeting .The complainant submitted two documents post hearing on annual leave and sick leave . These are dated post the complainants termination of employment and I have not incorporated them in my findings.

I have found that the complainant had an entitlement to cesser pay for annual leave while on sick leave in 2016 in accordance with Section 23 of the Act and I have not found any basis on which to disturb this strict entitlement.

Decision:

Section 41 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 the Working Time Act, 1997 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

I find that the complaint is well founded. I order the respondent to pay the complainant compensation for the breach of Section 23 of the Act in the amount of 1,920 euro.

Annual Leave during Sick Leave