ADJUDICATION OFFICER DECISION

 Adjudication Reference: ADJ-00009834

Complaint:

ActComplaint/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-00012898-001 01/08/2017   Date of Adjudication Hearing: 09/11/2017 Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 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 had been employed by the respondent from September 2007 until March 2017. He was on long term sick leave from 21st September 2015, throughout all of 2016 and up to the date of his termination on March 14th 2017. He was paid €10.00 per hour for a forty hour week

Summary of Complainant’s Case:

The complainant sustained a workplace injury which caused him to be out sick from September 21st 2015 until March 14th 2017 when he resigned as he was not medically fit to carry out his duties. He claimed twenty-seven days and in the course of discussions with the respondent he was offered seventeen which he did not accept.  

Summary of Respondent’s Case:

The complainant’s absence on sick leave was not disputed apart from a period of two and a half months where medical certificates were not submitted at the time. It was on this basis that the respondent offered thirteen days in respect of 2016 and four in respect of 2017.  

Findings and Conclusions:

Since August 2015 workers have been able to accrue annual leave when they are on long term sick leave. On foot of amendments to the Organisation of Working Time Act 1997, workers were enabled to carryover such accrued annual leave for a period of 15 months after the leave year in question.     The new legislation was in response to rulings of the Court of Justice of the European Union on accrual of annual leave entitlements during sick leave. Minister Nash secured Cabinet agreement last November to in order to make these important legislative changes.   The amendment to the legislation was made by way of section 86(1) of the Workplace Relations Act 2015.   In summary, it resulted in the following:  Statutory annual leave entitlement accrues during a period of certified sick leave.   An annual leave carryover period of fifteen months after a leave year will apply to those employees who could not, due to illness, take annual leave during the relevant leave year or during the normal carryover period of six months.   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 within a period of fifteen months following the end of the leave year during which the statutory leave entitlement accrued.   The annual leave year runs from April 1st to March 30th. The complainant terminated his employment on March 14th 2017. He is therefore entitled to annual leave in respect of eleven and a half months for the annual leave year that was his current year at the time of his resignation. As his termination was within fifteen months of the conclusion of the previous annual leave year he is also entitled to annual leave in respect of the period from September 21st 2015 to March 30th 2016; a total of twenty-five weeks. On this basis, his total annual leave entitlement is based on seventy-five weeks’ sick leave absence; an entitlement to just over twenty-eight days, and on the basis of a daily wage rate of €80 this comes to €2307.00.    

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.   For the reasons set out above I uphold complaint CA-00012898-001 and award the complainant €2307.00.  

Dated:   18/01/2018

Workplace Relations Commission Adjudication Officer: Pat Brady Key Words: Carry over of sick leave