ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00013496/00013484

Parties:

	Complainant	Respondent
Anonymised Parties	A General Operative	A Food Processing Company

Complaint(s):

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-00017710-001	28/02/2018

Date of Adjudication Hearing: 15/06/2018

Workplace Relations Commission Adjudication Officer: Jim Dolan

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 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 by the Respondent as a general operative from August 2009 until the date of his resignation on 22nd November 2017.

From the 18th July 2012 until 22nd November 2017 he was absent from work because of a workplace injury.

At the time of his resignation the Complainant had accrued a level of holiday entitlement and it was on this subject that a complaint was submitted to the Workplace Relations Commission (WRC) on 28th February 2018.

Summary of Complainant’s Case:

1. The Workplace Relations Act 2015

The Workplace Relations Act 2015 includes the accrual of annual leave entitlements while absent due to illness. This came into effect from 1st August 2015. An employee on certified sick leave who cannot take annual leave during the relevant leave year or the normal carryover period of 6 months, is entitled to an extended carryover period of 15 months after the leave year to take their accrued annual leave. If an employee leaves their job they are entitled to payment in lieu for any annual leave that accrued and was undertaken as a result of the certified illness. Section 86 of the Workplace Relations Act 2015 amended Sections 19, 20 and 23 of the Organisation of Working Time Act 1997 to bring the Act in line with the rulings of the Court of Justice of the European Union for workers to accrue annual leave during periods of certified sick leave. The Act provides that where an employee ceases employment with outstanding annual leave, the balance must be paid for by the employer.

2. Respondent Submissions

It is clear from the Respondent submissions that they accept and acknowledge the entitlement to 20.35 days of annual leave subject to production of payslips. Complainant finds it somehow extraordinary to form such a request by Respondent who is the author of those payslips. Nonetheless enclosed is P60 for 2012. That shows average weekly earnings over period of 34 weeks as follows: €12,263.49/34 = €360.69. In other words it shows earnings in 2012 before Complainant went on sick leave so has sufficient information to provide payment. That information was provided to Respondent representative on 8th June 2018 and despite their position they have failed or refused to pay that entitlement. It seems that they want to make it conditional upon Complainant resigning from the rest of his entitlement.

3. What is still in dispute

Clearly entitlement to 12.53 days of annual leave remains in dispute and that is based by Respondent upon argument that medical certificates were not provided by Complainant.

Complainant notes as follows:

- Respondent did not produce medical certificates which were submitted. Complainant submitted originals and does not have copies.

- Respondent are and always have been extremely robust in pursuing absent employees in relation to medical certificates. At no stage did the Company notify Complainant that there are uncover periods of absence and Respondent submissions does not contain any reference that such steps were taken.

- Complainant was obtaining medical certificates. See enclosed printout from GP showing different dates certificates were issued. Again GP does not hold copies of certificates issued.

- Respondents were well aware of Complainant medical condition, his condition as verified by medical personnel on their request as part of the personal injury claim.

4. Submissions

Complainant submits that he is entitled to payment of 32.88 days of annual leave in total and that consists of an undisputed by Respondent 20.35 days which despite such undisputed status were not paid to date and also further 12.53 days on the basis that the conditions were met and Respondent was provided with medical certificates. Printouts of some sort of Respondent computer system indicating in colours what they alleged is certified or uncertified period cannot be taken as evidence without production of source documents – namely medical certificates which are in possession of respondent and were not included with their submission for unknown reasons.

Summary of Respondent’s Case:

Background to the Claimant

The Complainant commenced employment with the Respondent on 17th August 2009 as a General Operative. Unfortunately, he commenced a period of sick leave due to a work-related injury on 18th July 2012. He resigned with effect from 22nd November 2017.

Background to the Claim

1. On 18th July 2012 an incident took place involving the Complainant which led to him commencing a period of long term sick leave due to a work-related injury.

2. On 22nd November 2017 the Complainant resigned. In his resignation letter he stated:

“I hereby give you notice of my resignation from the Company with effect from the date hereof. I confirm that I have no claim against the Company for compensation for redundancy, unfair dismissal or otherwise arising from my resignation”.

3. On 2nd January 2018 the Complainant wrote to the Respondent seeking his entitlement to annual leave accrued while on sick leave.

4. On 7th February 2018 a member of the Respondent Company wrote to the Complainant asking for copies of his last thirteen pay slips from the period prior to the commencement of his sick leave “in order for me to calculate your holiday pay”. The Company did not receive any response from this letter. The Complainant lodged his complaint to the WRC three weeks later, on 28th February 2018.

5. On 6th April 2018, the Respondent’s HR Manager wrote to the Complainant. She referred to the letter of 7th February where no reply had been received by the Company. She acknowledged that an error had been made and that, by the Company’s calculations, he was due 12.5 days outstanding annual leave. She asked him to revert to her within seven days in order to proceed with the payment of this leave.

6. On 10th April 2018 the Complainant replied to the Respondent’s HR Manager. He did not accept the 12.5 days she had said was his entitlement. Instead he informed her that his outstanding entitlement was 38 days and sought payment for these days as well as a P45.

Company’s Arguments

1. The Workplace Relations Act 2015 amended the Organisation of Working Time Act 1997 and introduced the entitlement for an employee to accrue annual leave while on certified sick leave. The Company acknowledges that an error was made in the calculation of the Complainant’s annual leave entitlements. However, the leave entitlements that he referred to in his letter of 10th April 2018 are also incorrect.

2. While the Company had originally informed the Complainant that he was due 12.5 days annual leave, on review, this was found to have been underestimated.

Under normal circumstances, the Complainant would have been entitled to annual leave as follows:

1 April 2016 to 31 March 2017 52 weeks 20 days

1 April 2017 to 22 November 2017 33.5 weeks 12.88 days

Total 32.88 days

3. Section 19, subsection 1(a) of the Organisation of Working Time Act 1997 states:

“1(A) For the purposes of this section, a day that an employee was absent from work due to illness shall, if the employee provided to his or 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 his or her place of work or at his or her employer’s disposal, and

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

Section 20, of the same act 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-

iii) where the employee-

i) Is, due to illness, unable to take all or part of his or her annual leave during that leave year or the period specified in subparagraph

ii) And

iii) Has provided a certificate of a registered medical practitioner in respect of that illness to his or her employer, within the period of 15 months after the end of that leave year.

4. In the statutory leave year 1st April 2016 to 31st March 2017, the Complainant did not produce any certificates from a registered medical practitioner for a total of 10.71 weeks. This equates to the statutory leave entitlement being reduced by 4.12 days.

In the statutory leave year relevant to the Complainant’s resignation, 1st April 2017 to 22nd November 2017, he did not produce any certificates from a registered medical practitioner for a total of 21.86 weeks. This equates to the statutory leave entitlement being reduced by a further 8.41 days.

When the periods of uncertified sick leave are taken into account, the Complainant is in fact owed 20.35 days annual leave. The company is prepared to pay him this amount once he is in a position to provide the payslips as requested in the letter to him dated 7th February 2018.

Conclusion:

1. The Respondent acknowledges that the original offer of 12.5 days outstanding holiday pay was an error. It is unfortunate that the Complainant proceeded with a complaint directly to the WRC rather than attempting to work with the Respondent to resolve this matter locally.

2. The Company is prepared to pay the Complainant 20.35 days outstanding holiday pay as soon as it receives the thirteen pay slips it requested in February of this year. However, the Complainant would not be entitled to any further leave as he failed to produce certificates from “a registered medical practitioner” as is specifically required under the Organisation of Working Time Act 1997.

Findings and Conclusions:

There is no dispute relating to the fact that the Complainant is owed an amount of accrued annual leave payment following his resignation from the Respondent company.

The Workplace Relations Act 2015 amended the Organisation of Working Time Act 1997 and introduced the entitlement for an employee to accrue annual leave while on certified sick leave. The Company acknowledges that an error was made in the calculation of the Complainant’s annual leave entitlements.

While the Company had originally informed the Complainant that he was due 12.5 days annual leave, on review, this was found to have been underestimated.

Under normal circumstances, the Complainant would have been entitled to annual leave as follows:

1 April 2016 to 31 March 2017 52 weeks 20 days

1 April 2017 to 22 November 2017 33.5 weeks 12.88 days

Total 32.88 days

Section 19, subsection 1(a) of the Organisation of Working Time Act 1997 states:

At his or her place of work or at his or her employer’s disposal, and

Carrying on or performing the activities or duties of his or her work.

Section 20, of the same act 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 –

I. To the leave being granted-

iii) where the employee-

II. Is, due to illness, unable to take all or part of his or her annual leave during that leave year or the period specified in subparagraph

III. And

IV. Has provided a certificate of a registered medical practitioner in respect of that illness to his or her employer, within the period of 15 months after the end of that leave year.

In the statutory leave year 1st April 2016 to 31st March 2017, the Complainant did not produce any certificates from a registered medical practitioner for a total of 10.71 weeks. This equates to the statutory leave entitlement being reduced by 4.12 days.

When the periods of uncertified sick leave are taken into account, the Complainant is in fact owed 20.35 days annual leave. This amount should be paid to the employee.

In a situation where the employee may have been in a position to return to work he would be owed this level of annual leave at the current general operative rate and this is the rate that should be paid to him now.

I would ask the Respondent to reflect on the request made to the Complainant in relation to the supply of 13 payslips. Payment should not be delayed due to this request.

Section 27 (3) of the Organisation of Working Time Act, 1997 reads as follows:

(3) A decision of a rights commissioner under subsection (2) 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, and the references in the foregoing paragraphs to an employer shall be construed, in a case where ownership of the business of the employer changes after the contravention to which the complaint relates occurred, as references to the person who, by virtue of the change, becomes entitled to such ownership.

In this instant case I find that the complaint is well found and now order the Respondent to pay to the Complainant 20.35 hours at the prevailing rate (I noted at the hearing that the amount of €1,468.25 was being paid to the employee on Friday 22/06/2018).

In addition to the outstanding holiday entitlement (already paid at this stage) I order the Respondent to pay to the Complainant a sum of €500 as compensation.

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.

The Complaint is well found and payment of outstanding holiday entitlement and compensation as outlined above should be made to the Complainant.

Dated: 20th August 2018