ADJUDICATION OFFICER DECISIONS
Adjudication Reference: ADJ-00011241
Parties:
| Complainant | Respondent |
Anonymised Parties | A site coordinator | A cleaning contractor |
Representatives | Marius Marosan | IBEC |
Complaints:
Act | Complaint 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-00014941-001 | 11 October 2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00014941-002 | 11 October 2017 |
Date of Adjudication Hearing: 11 January 2018
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Procedure:
On the 11th October 2017, the complainant referred complaints to the Workplace Relations Commission pursuant to the Organisation of Working Time Act. The complaints were scheduled to adjudication on the 11th January 2018.
At the outset of the adjudication, I informed the parties that I heard an Unfair Dismissals claim involving the same parties and representatives (ADJ 4045).
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The complainant seeks redress for accrued annual leave while on sick leave. The respondent denies the claim. |
Summary of Complainant’s Case:
The complainant outlined that this case was about her annual leave. She was out sick for two years. She emailed the respondent in June 2017 for her P45 and her holiday money. In July 2017, she was paid for public holidays for six months. This was a payment of €744.50. She also asked for her pay slips as they were available to staff online and she did not have access to the system. She required the pay slips for her records. She could not remember if she took annual leave in 2014 so required the pay slips to confirm this. The complainant accepted that her employment came to an end on the 18th April 2016, the date she sent her resignation to the respondent. On the 11th April 2016, the complainant had requested the outcome of her grievance and later resigned.
The complainant claims €2,822.4 as she accrued annual leave while on sick leave, as per the Directive and the Organisation of Working Time Act. The employee has 15 months while on sick leave to take accrued annual leave. The six-month limitation period does not apply as the Act has extended the period to 15 months.
The complainant said she resigned in April 2016 and the respondent refused to pay her for annual leave prior to that. She was on sick leave and retained an entitlement for annual leave back to August 2015.
The claim is for the period after the August 2015 as this is when the amendment to the Organisation of Working Time Act commenced. The complainant indicated that she withdrew the second complaint.
The complainant outlined that the respondent issued her with the P45 in July 2017. She said that the limitation period commences at this point and there is a 6-month period from this point. The complainant had been left on the books long after the adjudication of her unfair dismissal claim. The complainant said she knew that the 18th April 2016 was the date of her resignation but her P45 was not issued for over a year later. The bottom line she had not received any annual leave. |
Summary of Respondent’s Case:
The claim was lodged on the 11th October 2017 and the complainant’s resignation was the 18th April 2016. The leave year for the respondent is January to December, as set out in the handbook. After the dismissal in April 2016, the respondent agreed to pay annual leave on receipt of sick certificates. The P45 is an administrative document and the date of dismissal is the 18th April 2016. The payment of annual leave for the period of April to December 2016 was a gesture of good will and not an acceptance of the complainant’s employment. |
Findings and Conclusions:
CA-00014941-001 This complaint is made pursuant to the Organisation of Working Time and seeks redress for accrued annual leave while the complainant was on sick leave. The first issue is the date the complainant’s employment with the respondent came to an end. This was the date of her resignation, the 18th April 2016, and the basis of the complainant’s well founded constructive dismissal claim in ADJ 4045.
The fact of the respondent delaying to July 2017 the issue of the complainant’s P45 does not allow the complainant to continue to accrue annual leave beyond the date of her resignation.
The complainant is correct that between the 1st August 2015 (the date of the amendment to the Organisation of Working Time Act) and the 18th April 2016, she accrued annual leave while on sick leave. While section 20(1)(c) refers to the period of 15 months after the expiry of a leave year, in the case of an employee whose employment has ended, they have six months from the date their employment ends to seek cesser pay arising from such accrued annual leave (extendable with reasonable cause to 12 months). Given that this complaint was referred on the 11th October 2017, it is made outside of the limitation period provided by the Workplace Relations Act.
CA-00014941-002 The complainant indicated at the adjudication that she was withdrawing this complaint relating to public holidays. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00014941-001 The complaint made pursuant to the Organisation of Working Time Act is not well founded as it was referred to the Workplace Relations Commission outside of the limitation period provided by section 41 of the Workplace Relations Act.
CA-00014941-002 The complainant indicated at the adjudication that she was withdrawing this claim and for the sake of completeness, I decide that it is not well founded. |
Dated: 4 July 2018
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Key Words:
Organisation of Working Time Act, section 20(1)(c) |