Complainant

Respondent

Anonymised Parties

A Counselling Psychologist

A third level education body

Representatives

Frank Jones Irish Federation of University Teachers

Niamh Ní Cheallaigh IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00013136-001

15/08/2017

An issue has arisen regarding the individual’s Annual leave entitlements in the aftermath of the amalgamation of separate educational Institutions onto the one third level campus.

The Complainant is a counselling psychologist who has worked in third level institutions since 1998. The Complainant had initially been engaged in a higher level Institution which said body transferred into or was incorporated into the new College campus in and around mm/yy.

The principles surrounding the law on the transfer of an undertaking would have to apply in this situation and there is an obligation on the Employer to ensure that the terms and conditions of the transferring employee are no less favourable due to the transfer having happened. To this end, the Complainant’s salary was red-circled, as it was higher than might be expected on the new campus. In the past, the complainant’s salary had been linked to the scale applicable to the Academic staff in the higher level Institution she had been in. The Complainant’s role was non-academic and would be considered an administrative role in the new campus.

The Complainant’s Contract of employment with the Higher Level Institution had confirmed that she would be entitled to not less than one month of scheduled annual leave in accordance with the needs and dictates of the college. The Complainant gave evidence that certainly in practise, she was entitled to significantly more annual leave than had been stipulated in the Contract of employment. In fact, the Complainant has asserted that in any academic year she would also take paid leave in the two-week period around Christmas and the two-week period around Easter – these two breaks were in addition to the month expressed in the Contract of Employment and which she would take in the summer months. The Christmas and Easter periods would have included some Public Holidays to which she would always have been entitled.

In total the Complainant says she was enjoying a full 36 days’ annual leave and that she had been enjoying this number of days paid leave for many years preceding the amalgamation of the different bodies to create the College campus.

The Complainant’s evidence in this regard was purely oral and there is very little documentary evidence to back it up even though I did have sight of two old emails which referenced holidays. So, for example, there are no older payslips confirming holiday pay being paid for 7 weeks annually. There is no other secondary evidence disclosing the basis on which holidays were given or secured. The only documentary evidence is the Contract of employment which allows for one month. There is nothing to suggest that any extra holidays were not discretionary, ad hoc or uncertain. What was confirmed by the parties was that the High er level Institute to which the Complainant was attached was all but closed in the weeks around Christmas and Easter and that very few staff – administrative or academic – would be there in those periods.

This is not the practice in the new College Campus which has adopted the practice of being fully open and available during these periods which might traditionally have been perceived to be holiday periods. The Complainant makes a very compelling case for having her 36 days of annual leave both recognised and restored to her. The Complainant is willing to forgo an incremental link (to put her in line with her comparator in the relevant department) in return for the time off she says she has heretofore enjoyed.

The Respondent on the other hand seeks to distinguish between the Complainant’s entitlements as a member of the administrative staff and the academic staff who have long been entitled to 36 days’ annual leave in the manner described by the Complainant. The Respondent in considering the Complainant’s situation has sought to meet the complainant a part of the way and has suggested that she be entitled to an increase in annual leave from the 24 days recognised in the Contract of Employment to 29 days (giving her a full week more than other Administrative staff). The Complainant was not happy with that offer and is seeking her full 36-day entitlement (as she sees it), although I note at one stage in the talks she was inclined to accept 32 days in compromise. This matter has been through the internal mechanisms provided.

I see merit in the part of both parties’ positions. On balance, I would have to find that the Complainant was getting more annual leave than her Contract provided for. This seems to have been given on a steady basis though on an informal, undocumented footing.

Findings and Decision:

In the circumstances, I am inclined to agree that the complainant is entitled to more annual leave than she was offered at the outset (24 days). I recommend that the complainant be offered 30 days’ annual leave. The Complainant is limited to the Christmas, Easter and summer vacation periods for taking the said annual leave as has heretofore been the practice. This should be applicable in full from next year – 2018, and should be accommodated where practical this year - 2017.

This accommodation will need to be red-circled as against other staff.

I am further recommending that Complainant’s salary be increased along the lines already proposed by the Respondent i.e. increased to €79,013.00 effective from January 2017.

These recommendations are made pursuant to Section 13 of the Industrial Relations Acts, 1969.