ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00008395

Parties:

Date of Adjudication Hearing: 31/08/2017

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

BACKGROUND

The Complainant was employed from 28^th November 2011 until the employment terminated on 3^rd April 2017. The Complainant was paid €346.00 gross per week and she worked 40 hours a week. The Complainant referred a complaint to the Workplace Relations Commission on 19^th May 2017 alleging the Respondent had breached the Organisation of Working Time Act, 1997 – 2015 in relation to payment of accrued annual leave on termination of the employment.

SUMMARY OF COMPLAINANTS POSITION.

The Complainant stated that she was on Maternity Leave in 2014 and resumed employment with the Respondent on 9^th March 2015 and she worked until 29^th April 2015 when she commenced sick leave until she commenced Maternity Leave again on 2^nd November 2015 until 2^nd May 2016, following which the Complainant availed of 4 months unpaid Maternity Leave, following which she was on sick leave from 22^nd September 2016 until she tendered her resignation on 3^rd April 2017. The Complainant is claiming her annual leave entitlements for the following annual leave years – 2015/2016: 2016/2017: 2017/2018

SUMMARY OF RESPONDENT’S POSITION.

The Respondent confirmed the details of the Complainant’s employment, sick leave and maternity leave as set out by the Complainant.

FINDINGS AND CONCLUSIONS.

The Complainant tendered her resignation from the employment on 3^rd April 2017. Section 2(1) of the Act of 1997 defines the Leave Year as “a year beginning on any first day of April”. Likewise Section 23 of the Act of 1997 provides that where the termination of the employment occurs in the first six months of the current annual leave year then the leave years to be considered are the 2017/2018 and the 2016/2017 annual leave years in this complaint.

However the Complainant is seeking her annual leave entitlements also for the 2015/2016 annual leave year. However Section 41(6) of the Workplace Relations Act, 2015 provides that a complaint must be lodged within a period of six months of the alleged contravention to which the complaint relates. This complaint was lodged with the WRC on 19^th May 2017.

Therefore in accordance with both the Act of 1997 and the Act of 2015 the annual leave years covered by this complaint is the 2016/2017 and the 2017/2018 leave years.

The Complainant was on Maternity Leave from 1^st April 2016 to 22^nd April 2016. Section 22 (1) of the Maternity Protection Act, 1994 provides that while an employee is absent from the employment on “protective leave” “the employee shall be deemed to have been in the employment of the employer, and accordingly, while so absent the employee shall…….be treated as if she had not been so absent”. Protective Leave is defined as Maternity Leave and additional Maternity Leave. Therefore the Complainant is entitled to her annual leave entitlements for this period of “Protective Leave”.

The Complainant was on sick leave from her employment from 23^rd September 2016 to 3^rd April 2017 when she resigned from her employment. The Court of Justice of the European Union in Case C-350/06 Schultz-Hoff decision held that an employee on sick leave was entitled to accrue annual leave entitlements even though on long term sick leave. This decision of the CJEU was incorporated into Irish legislation by Section 86(1) of the Workplace Relations Act, 2015 which has held that effective from 1^st August 2015 an employee on sick leave is entitled to accrued annual leave on termination of the employment. Therefore the Complainant is entitled to accrued annual leave while on sick leave from 23^rd September 2016 to 3^rd April 2017.

The Complainant is therefore entitled to payment of the following accrued annual leave –

2016/2017 annual leave year 20 days (The Complainant was on Maternity Leave from 1/4/2016 to 22/8/2016, absent from work from 23^rd August 2016 to 23^rd September 2016 when she commenced sick leave on 23^rd September 2016 to 31st March 2016, - a period of 12 months = €1464.00

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.

In accordance with Section 41(5) of the Workplace Relations Act I declare the complaint is well founded in relation to the 2016/2017 and the 2017/2018 annual leave years. I direct the Respondent to pay the Complainant –

€1464.00, subject to any lawful deductions, in respect of the 2016/2017 annual leave year,

€146.40, subject to any lawful deductions, in respect of the 2017/2018 annual leave year and

Compensation of €200.00 for breach of Section 23 of the Organisation of Working Time Act, 1997 - 2015

Dated:   27^th October 2017

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

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