ADJ-00015440

Complainant

Respondent

Anonymised Parties

Counter Assistant

Retail Pharmacy

Representatives

Damien Keogh Independent Workers Union,

Sarah Treacy Peninsula Group Limited,

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-00019895-001

20/06/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00019895-002

20/06/2018

The Complainant was employed as a Counter Assistant from 1st November 2007 to 13th April 2018. She was paid €364.71 gross and €327.26 net per week. She has claimed that she was not compensated for Public Holidays and annual leave accrued when put sick. She has sought compensation.

The Complainant sought to have the time limit extended. She stated that she was not aware of the need to send in medical certificates.

The Complainant was employed as a counter assistant from 1 November 2007 until her resignation on 13 April 2018. She was on maternity leave from12 October 2015 until 11 June 2016. Thereafter the Complainant was absent through illness until her resignation.

She has made the following claims:         

a.       That she has not been paid her public holiday entitlement.

b.       That she has not been paid her annual leave entitlement.

The Respondent denies each of the Complainant’s claims.

The Complainant was paid for all annual leave and public holiday entitlement accrued during her maternity leave by cheque dated 1 June 2018 sent under cover of a letter dated 1 June 2018.

The Complainant has never provided a medical certificate in respect of any of the time that she has been on sick leave.

The Respondent’s company handbook provides: If your absence has been (or you know that it will be) for three or more working days you should see your doctor and make sure he/she gives you a medical certificate and forward this to us without delay. Subsequently you must supply us with consecutive doctor’s medical certificates to cover the whole of your absence on an agreed basis.

If your incapacity extends to more than seven days you are required to notify us of your continued incapacity once a week thereafter.’

The Complainant has never submitted a medical certificate in relation to any day of illness since 11 June 2016. Therefore, in accordance with section 19A she has not accrued any days that are deemed to be a work day for the purpose of section 19 and no annual leave entitlement has accrued. As a result, no pay in respect of any annual leave entitlement is due.

PUBLIC HOLIDAY ENTITLEMENTS

The only public holiday which fell in first 26 weeks during which the Complainant was absent from work due to sickness was 31 October 2016. Payment in respect of that date was made to the Complainant by cheque dated 1 June 2018. No entitlement arises to any other public holiday pay.

It is respectfully submitted that the Complainant has failed to make out her claims (save insofar as admitted and paid) and each claim must therefore fail.  

submission in relation to the ECJ decisions regarding the accrual of annual leave while on sick leave, the following cases/materials in formulating the within opinion:

Alicja Sobczyszyn v Szkola Podstawowa w Rzeplinie C-178/15

Francisco Vicente Pereda v Madrid Movilidad C-277/05

Joined Cases:

o   Gerhard Schultz-Hoff v Deutsche Rentenversicherung Bund C-350/06

o   Stringer v HMRC C-520/16

The relevant sections of the Organisation of Working Time Act 1997 (as amended)

The cases above deal with various situations where an employee has accrued leave but, due to illness, was prevented from taking their accrued leave (or, where the employment relationship had ended, an allowance in lieu of same).

Article 7 of the Directive provides: ‘Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with he conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice.’

The Irish legislature laid down conditions for entitlement to such leave at section 19 of the Organisation of Working Time Act 1997 as follows:

‘(1) … an employee shall be entitled to paid annual leave… equal to –

(a)    4 working weeks in a leave year in which he or she works at least 1,365 hours…,

(b)    One-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c)     8 per cent of the hours he or she works in a leave year.

(1A) 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 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.’

The instant case may therefore be distinguished from the above three cases because the issue in the present case is that the leave was not accrued in line with the provisions of section 19A. As the conditions for entitlement were not met by the Complainant in the instant case, no right to annual leave arose in relation to her period of uncertified leave. If those conditions had been met, the Complainant would have been entitled to exercise her right to leave in 2016, 2017 and 2018 either during the year or the 15 month carry-over period provided for in section 20 of the 1997 Act.

In the Stringer/Schultz-Hoff case, the Court found (at paragraph 46) that: ‘… Member States are free to lay down, in their domestic legislation, conditions for the exercise and implementation of the right to paid annual leave, [the Court] has nevertheless made clear that Member States are not entitled to make the very existence of that right… subject to any preconditions whatsoever.’

The Irish legislature have laid down the conditions for the exercise and implementation of the right to annual leave at section 19 of the Organisation of Working Time Act. That section provides that the entitlement to leave is accrued based on hours worked and that where an employee was absent from work due to illness AND has provided [at the point of request to exercise that right] a certificate from a registered medical practitioner in respect of that illness,the relevant sick days will be treated as working days for the purpose of the accrual of leave.

The setting of these conditions for the exercise and implementation of the right to paid annual leave do not ‘exclude the very existence of [the] right’ as was found to be unlawful in the Schulz-Hoff case[1]. Indeed, the only action that the Complainant in the instant case had to take in order to engender the right to annual leave, was to forward to her employer her medical certificates in line with the requirements of her contract and with section 19 of the Organisation of Working Time Act.

This is in line with the Article 5(4) of the International Labour Organisation Holidays with Pay Convention (Revised), 1970 which is expressly taken into account at Recital 6 in the preamble to Directive 2003/88. That Article provides: ‘Under conditions to be determined by the competent authority or through the appropriate machinery in each country, periods of absence from work for such reasons beyond the control of the employed person concerned as illness, injury or maternity shall be counted as part of the period of service. ‘

Therefore, as the Complainant failed to provide a medical certificate in respect of any of her sick leave at the relevant time, and particularly where the Complainant accepts that she was advised of the requirement to do so in her contract, no leave entitlement was accrued by the Complainant and her claims must therefore fail.

Request to extend the time limit

Claims out of time, Public holiday and holiday entitlement, Accrual of holiday entitlement while out sick