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-00011805-001

31/May/2017

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

CA-00011805-002

31/May/2017

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

CA-00011805-003

31 May, 2017

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

CA-00011805-004

31/May/2017

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

CA-00011805-005

31/May/2017

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

CA-00011805-006

31/May/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00011805-007

31/May/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00011805-008

31/May/2017

The Complainant is seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 and has submitted the there was a breach of Section 20 of the aforementioned Act in relation to the holiday year ending the 31st March 2017 (CA-00011805-001)

The Complainant is seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 and has submitted there was a breach of Section 19 of the aforementioned Act in relation to Annual Leave for the year ending 31st March 2017 (CA-00011805-002)

The Complainant is seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 and has submitted there were breaches of Sections 21 and 22 of the aforementioned Act in respect of the public holidays which fell on the 17th March 2017 (CA-00011805-003)

The Complainant is seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 and has submitted there were breaches of Sections 21 and 22 of the aforementioned Act in respect of Easter Monday 2017 (CA-00011805-004)

The Complainant is seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 and has submitted there were breaches of Sections 21 and 22 of the aforementioned Act in respect of the My Public Holiday 2017 (CA-00011805-005)

The Complainant is seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 and has submitted that the Respondent Company was in breach of Section 18 of the aforementioned Act in relation to zero hours working practices (CA-00011805-006)

The Complainant is seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act 1991 and has submitted that the Respondent Company has made an unlawful deduction from his wages (CA-00011805-007)

The Complainant is seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act 1991 and has submitted that the Respondent Company has made an unlawful deduction from his wages (CA-00011805-008)

The aforementioned complaints were submitted on the 31 May, 2017.

The Complainant was employed as a production operative from the 13th March 2008 with the Respondent Company and was paid €480 (gross) per week and worked approximately 50 hours per week.

In the circumstances of this matter, the complainant suffered a work related injury which resulted in a claim being made against the Respondent Company and this was ultimately compromised in 2016. Accordingly, the Respondent had been on sick leave since the time of the work related injury.

Ultimately, it was submitted on behalf of the Complainant, in February 2017 the Complainant was given a doctors note that he was able to return to the workplace and the Respondent Company was notified of same.

It was submitted on behalf of the Complainant that, in relation to the Complaints under the Organisation of Working Time Act, 1997 that on his return from sick leave the Complainant was not afforded his entitlements as by Section 19, on his return from sick leave the Complainant was not afforded his entitlements as by Section 20, the Complainant was not compensated in line with Section 18 for the period February 2017 and 31/05/17 and the Complainant was entitled to three public holidays (17th March, Easter and May 2017) and no such entitlements were received by him.

In relation to the above, it was submitted there are six complaints in relation to the Organisation of Working Time Act, 1997 and each attracts compensation of up to two years of wages and in further consideration of this matter the Van Kolson principles should be applied.

It was further submitted on behalf of the Complainant that, in relation to the Complaints under the Payment of Wages Act 1991, that the Complainant was neither paid nor was he given work despite notifying the employer of being able to work and accordingly the Complainant is claiming for ten weeks at €480.00 (gross)/per week

It was submitted on behalf of the Respondent Company that they received correspondence from the Complainants Doctor, following settlement of the work related injury, that he may be able to return within a few months and subsequently without any advance notice the company received a return to work date of the 3rd February 2017. The Respondent Company before allowing the Complainant to return to work wanted to ensure that he was fit to be able to carry out his full range of duties and therefore sent him to the occupational physician.

The Occupational Physician carried out an examination but felt it was necessary to refer him to an Orthopaedic Consultant before making any final decision and ultimately the they were advised in July 2017 that the Complainant was fit to return to work. Initially, the Respondent Company had not paid the Complainant from February 2017 as he had not been at work and believed that it was essential for him to be properly cleared by a specialist before allowing his return to work and this was in consideration of Health and Safety reasons. Subsequently, the Respondent Company did pay the Complainant all wages from the date he was originally declared fit to return to work and he returned to work on the 7th July 2017.

In relation to the various complaints, it was agreed at the outset that Complaints CA-11805-007 and CA-11805-008 are a duplication and in that respect I regard the latter complaint as withdrawn.

In relation to CA-11805-001, the Respondent Company submitted that Section 20 of the aforementioned Act refers to the time and pay which is applicable for Annual Leave and sets out the criteria which applies to the times at which Annual Leave should be granted and what the employee would be paid for leave. It was submitted that during the period of time (3rd February to 31st March 2017) the Respondent Company received no request from the Complainant to take annual leave and fully accept that once the claimant was declared fit to attend work he was deemed to be at work for the duration of that period. The Respondent Company believed there was no issue with regard to the claimant being able to reconcile work and family responsibilities during this period.   The Respondent Company submitted that with regard to annual leave which was accrued during this period it was confirmed there was no issue regarding entitlement to annual leave or the pay for annual leave. In that respect, the Respondent Company accepted there was a technical breach from the period from the 3rd February to March 31st 2017.

In relation to CA-11805-002, the Respondent Company submitted that Section 19 of the aforementioned Act stipulates the Annual Leave entitlement a person may accrue. Under the Workplace Relations Commission Act 2015 there was a change to the method of calculation based on absence form work due to sickness. In this regard, the Complainant is allowed up to fifteen months from the expiry of the relevant year to take any outstanding leave that may have been due to the claimant during that year.

The Respondent Company has acknowledged that the Complainant was not allowed to return to work until it was full satisfied that he was fit to return to work however it was confirmed that the Complaint has accrued full entitlements to annual leave for that period of time and is still eligible to take up this leave until the 31st June 2018. The Respondent Company also provided a schedule outlining the leave entitlements due to the Complainant.

In relation to CA-11805—003, CA-11805-004 and CA-11805-005 in respect of the public holidays on the 17th March 2017, Easter Monday and May Day, the Respondent Company submitted that the Complainant was paid his normal days pay for those three days and in the course of the hearing of this matter, the Complainant accepted that he had been paid for these day.

In relation to CA-11805-006, it was submitted that the claimant is on a permanent full time contract with the Respondent Company and is not in a situation where the employer employs him when he is required to do the work and in that regard the Respondent Company has paid the claimant his full wages for each week which would be in excess of the 25% of the contracted hours which the Complainant is referring to. Specifically, in respect of the period between the 3rd February and 31st March 2017, the Respondent Company did not require the claimant to hold himself available as they were going through the process of in fact having the Complainant medicalized to ensure that he was fully fit to return to work. In that respect the Complainant was fully aware that he was subject to medicals and he was not required to attend work during this period of time. As all appointments were arranged with the Complainant it was submitted that even if there had been a contract which fell within the requirements within the definition of zero hours contract the Complainant was not required to hold himself available for the aforementioned period.

In relation to CA-11805-007, it was submitted that the Complainant was maintaining there had been an unlawful deduction from his wages however the Respondent Company confirmed the Complainant had been paid his wages for the full period of time without any deduction in relation to the period between February and July 2017.

In the circumstances of this matter, I have carefully listened to the evidenced tendered in in the course of this hearing and havefurther considered the written submissions provided by both parties.

In relation to CA- 11805-001 and CA-11805-002, 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 and specifically, in the course of this hearing the Respondent Company accepted that there had been a technical breach for the period 3rd February till the 31st March 2017. In that respect and in relation to that period alone, I find the claim in relation to Section 19 of the Organisation of the Working Time Act, 1997, well founded. However, it is noted that the Complainant has accrued full entitlements to annual leave and is still eligible to take this leave up until the 31st June 2018.

In relation to CA-11805-003, CA-11805-004 and CA-11805-005, it was accepted in the course of the hearing of this matter that the Complainant had been paid for these public holidays so accordingly each of these complaints are not well founded.

In relation to CA-11805-006, pursuant to Section 18 of the aforesaid Act in relation to zero hours working practices, and accepting the uncontroverted evidence of the Respondent Company that the Complainant is on a permanent full time contract and he is not in a situation where the Respondent Company employs him when he is required to do the work and accordingly this complaint is not well founded.

The Legal Representative submitted that not only should the Complainant be compensated for his economic loss but that compensation of up to two years should be awarded so as to act as a deterrent against further infractions. In that regard he relies on the case of Von Colson & Kamann –v- Land Nordrhein- Westfalen 1984 ECR 1891 ECJ,.an equality case in relation to access to employment. I am satisfied that whilst the principles in relation to compensation acting as a deterrent arose from this matter they did so in the context of equality principles and members states obligations in relation to directives and accordingly I do not accept they are relevant in the circumstances of this matter.

In relation to CA-11805 -007, pursuant to the Payment of Wages Act, 1991, and accepting the uncontroverted evidence of the Respondent Company that the Complainant was paid his wages for the full period of time without any deduction in relation to the period between February and July 2017 this complaint is not well founded.

In relation to CA-11805-008, both parties have agreed this is a duplication of CA-11805-007 so is accordingly is not well founded.

In conclusion, it is noted that once the Complainant made himself available for work on the 3rd February 2017 the Respondent Company should have made their best endeavors to facilitate the Complainant in order to do so. However, the Respondent Company did not effectively allow the Complainant to return to work until July 2017. In that respect, although an explanation was provided for this significant delay, it would have been expected that the Complainant would have been afforded the Complainant the opportunity to return to work at the earliest possible opportunity.

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 €400.00 in consideration of the breach of the relevant section from the period of time 3rd February 2017 to the 31st March 2017.

I find that the Complaints (CA-11805-002, CA-11805-003, CA-11805-004, CA-11805 and CA-11805-006) made pursuant to Section 27 of the Organisation of Working Time Act, 1997, are not well founded and fail

I find that the Complaints (CA-11805-007 and CA-11805-009) made pursuant to Section 6 of the Payment of Wages Act, 1991, are not well founded and fail

For the avoidance of doubt, I direct the Respondent to pay to the Complainant, compensation in the total amount of €400.00.

Annual Leave – Payment of Wages