Complainant

Respondent

Anonymised Parties

Stock Controller

Respondent

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-00017095-001

26/01/2018

The Complainant is seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 and has submitted he did not receive his paid holiday/annual leave entitlement (CA-00017095-001).

The Complainant was employed as a stock controller from the 1st July 2007 with the Respondent Company and was paid €2000.00 (gross) per month and worked approximately 40 hours per week.

In the circumstances of this matter, the complainant suffered a work related injury in or about the 13th July 2013 which has resulted in a claim being made and is currently ongoing. Accordingly, the Respondent had been on sick leave since the time of the work related injury. The Complainant is currently in receipt of an invalidity pension of approximately €200.00/week.

The Complainant submitted that his employment has never ceased and he first contacted the Respondent Company on the 12th April 2017 in relation to unpaid holidays but indicated that since that time he has been unable to resolve the matter satisfactorily and in that respect email correspondence was referred to.

Ultimately, the Complainant referred this matter to the WRC on the 26th January 2018 and receipt was acknowledged of same by the WRC on the 15th February 2018.

The Complainant indicated that in the course of his evidence he had submitted certified sick notes but did not provide copies of same in the course of the hearing. Subsequently, the Complainant forwarded by email on the 15th May 2018 a sick noted, from a Dental & Medical clinic, dated the 12th May 2018 that indicated he was suffering from anxiety disorder and is/was unable to attend work/school from the 17th October 2015 to the 9th January 2016.

The Respondent Company were informed of this complaint on the 15th February 2018. Following receipt of this notification, the Respondent Company emailed submissions to the WRC on the 6th March 2018.

This email/submissions indicated that the Respondent Company wanted to make a number of points post receipt of notification of the aforementioned Complaint. The Respondent Company submitted that the Complainant is suing in relation to a work related injury which is being disputed, that he is currently listed as an employee and claiming sick leave and he has not provided any sick notes since 2015.

The Respondent Company submitted that there understanding of the law is that the Complainant needs to take any accrued leave within 15 months of the end of the holiday year, that any accrued holidays commenced from the 1st August 2015, that it is not possible for the Respondent Company to pay in lieu and this is only allowed where the Complainant is leaving his current employment and further, the Complainant has not supplied any sick notes as required and accordingly there are no accrued holidays due.

However, in the course of the Respondent Company’s evidence it was confirmed that the Complainant had provided sick notes from the aforementioned Dental and Medical Clinic for five periods in 2015.

Following a visit to the Dental and Medical Clinic on the 3rd January 2015 a medical certificate was received up to the 28th February 2015. Following a visit on the 3rd March 2015 a medical certificate was received up to the 2nd May 2015. Following a visit on the 5th May 2015 a medical certificate was received up to the 28th July 2015. Following a visit on the 11th July 2015 a medical certificate was received up to the 3rd October 2015 and following a visit on the 17th October 2015 a medical certificate was received up to the 9th January 2016. Although, the Respondent Company indicated that they had not received the latter certificate.

The Respondent Company indicated that the amendment to the Workplace Relations Act 2015 made changes to how statutory annual leave is managed when an employee is on certified sick leave and these changes took effect on 1 August 2015. Accordingly, it is submitted that if this Complaint is well founded then the Complainant would only be entitled the appropriate redress from the 1st August 2015 onwards.

In the circumstances of this matter, I have carefully listened to the evidenced tendered in in the course of this hearing by both parties.

The Organisation of Working Time Act , 1997, provides for a basic annual paid leave entitlement of 4 weeks, although an employee's contract could give greater rights. It is for the employer to decide when annual leave may be taken, but this is subject to a number of conditions and the employer must take into account   family responsibilities, opportunities for rest and recreation that are available and to consult accordingly (Section 20). In addition, annual leave should be taken within the appropriate leave year or with consent, within 6 months of the relevant leave year. Further holding over (also known as carrying-over) of annual leave is a matter for agreement between the parties.

An amendment to the Workplace Relations Act 2015 made changes to how statutory annual leave is managed when an employee is on certified sick leave. These changes took effect on 1 August 2015 and include an employee’s annual statutory leave entitlement continues to build up during a period of certified sick leave, an employee, who due to illness 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 and if an employee leaves their job they are entitled to payment in lieu for any annual leave that accrued and was untaken as a result of illness. This payment in lieu only applies if you leave your employment up to 15 months after the end of the leave year during which the statutory leave entitlement accrued.

Pursuant to Section 19 (1) of the Act there is an entitlement to a basic annual paid leave entitlement of 4 weeks. There are 3 different ways of calculating annual leave entitlement, firstly based on the employee's working hours during what is called the leave year, which runs from April to March. An employee who has worked at least 1,365 hours in a leave year is entitled to the maximum of 4 working weeks' paid annual leave unless it is a leave year in which they change employment. Secondly, by allowing 1/3 of a working week for each calendar month in which the employee has worked at least 117 hours and thirdly 8% of the hours worked in the leave year, subject to a maximum of 4 working weeks.

In consideration of the above, I note the Respondent Company accept they were in receipt of the aforementioned medical certificates from the 3rd January 2015 up until the 31st October 2015 and I have been forwarded a medical certificate for the period up to the 9th January 2016. Further, I accept as the changes to how statutory annual leave is managed when an employee is on certified sick leave took effect from the 1st August 2015, I find that the complaint CA-00017095-001, in respect of the period from the 1st August 2015 until the 9th January 2016, to be well founded

I find that the Complaint   (CA-11805-001) made pursuant to Section 27 of the Organisation of Working Time Act, 1997, is well founded and order the Respondent to pay the Complainant €900.00 in consideration of the breach of the relevant section from the period of time 1st August 2015 to the 9th January 2016.

Annual Leave