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-00013955-001

15/09/2017

The complainant, who is a Polish national, was employed by the respondent as a Shop Assistant from 4th May, 2011 until 7th April, 2017 when she resigned from her position. The complainant claims that she did not receive payment from the respondent in relation to her annual leave and public holiday entitlements accrued while on sick leave upon the termination of her employment.

The complainant commenced employment with the respondent as a Shop Assistant on 4th May, 2011. The complainant worked on a part-time basis following the commencement of her employment until August, 2015 when she was offered a full-time position by the respondent working 32 hours per week.

The complainant worked on this basis from August, 2015 until 14th March, 2016 when she commenced a period of maternity leave. The complainant’s period of maternity leave expired on 10th September, 2016 but she was unable to return to work at that juncture as a result of post-natal depression. The complainant remained on certified sick absence from 11th September, 2016 until 7th April, 2017 when she decided to terminate her employment with the respondent on medical grounds.

The complainant claims that on the termination of her employment she received payment from the respondent in relation to her annual leave and public holiday entitlements which accrued during her period of maternity leave. However, the complainant contends that the respondent refused to discharge its obligation to make payment in relation to annual leave and public holiday entitlements accrued during her period of certified sick leave from 11th September, 2016 until 7th April, 2017 when her employment terminated.

The respondent did not forward any written submissions in response to this complaint and did not attend the oral hearing.

The Applicable Legislation

An issue arose at the oral hearing in relation to the applicable legislation under which the alleged contraventions in the present complaint should be considered. The complainant referred the present complaint to the WRC under the Payment of Wages Act 1991 claiming that the Respondent had contravened the annual leave and public holiday entitlements which she accrued while on sick leave. The complainant confirmed at the oral hearing that she was unsure, when completing the on-line complaint referral form, under which statute she should refer the complaint. The complainant indicated that she had ticked the box for the Payment of Wages Act 1991 as she was of the view that the complaint related to unpaid wages arising from the termination of her employment. At the outset of the oral hearing, the complainant sought to amend the complaint referral form and have the matter considered for adjudication in accordance with the relevant provisions of the Organisation of Working Time Act 1997.

In considering this matter, I have noted the judgement of McKechnie J. in the Supreme Court case involving County Louth VEC –v- The Equality Tribunal[1] where it was held that: “As is evident from the aforegoing (para. 19 supra), the initiating step for engaging with the provisions of the 1998 Act is that an applicant “… seeks redress by referring the case to the Director” (s.77 (1) of the 1998 Act). In the absence of any statutory rules to facilitate such a process, the Tribunal itself, in the form of guidelines, has drafted and published what is an appropriate form to use in this regard …… I agree with the view that there is nothing sacrosanct about the use of an EE1 Form to activate the jurisdiction of the Tribunal. I see no reason why any method of written communication could not, in principle, serve the same purpose; in fact, the Tribunal itself has so held in A Female Employee v. A Building Products Company DEC-E2007-036. Indeed, it is arguable that even a verbalised complaint would be sufficient to this end.”

Whilst I note that this Supreme Court judgement related to a claim under the Employment Equality Acts, I am satisfied that the reasoning of McKechnie J. in relation to the referral of complaints to a quasi-judicial body using a non-statutory form is equally applicable to the present case. It is clear that the on-line complainant referral form used by the WRC is not a statutory form, and therefore, a Complainant is not legally obliged to use this form when referring a complaint to the WRC. In the present case, I am satisfied that it was perfectly clear from the narrative which was completed by the complainant on the complaint referral form that she was seeking redress in relation to annual leave and public holiday entitlements accrued while she was on sick leave from her employment with the respondent. I am satisfied that it could readily be deciphered from this narrative that the complainant was seeking redress for alleged contraventions of Sections 19 and 23 of the Organisation of Working Time Act 1997. Furthermore, I note that a copy of the complaint was forwarded to the respondent by the WRC shortly after the date of referral and I am satisfied that it was fully aware of the nature of the alleged contraventions underpinning the proceedings well in advance of the oral hearing.

In the circumstances, I am satisfied that I have jurisdiction to inquire into the present complaint in accordance with the provisions of Sections 19 and 23 of the Organisation of Working Time Act 1997.

Section 21 of the Organisation of Working Time Act 1997

The first issue which I must decide relates to the complainant’s claim that the respondent has contravened the provisions of Section 21 of the Organisation of Working Time Act 1997 in relation to her public holiday entitlements.

The relevant Law

In relation to public holiday entitlements, Section 21 of the Organisation of Working Time Act 1997 provide as follows:

“Entitlement in respect of Public holidays.

21.- (1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—

(a) a paid day off on that day,

(b) a paid day off within a month of that day,

(c) an additional day of annual leave,

(d) an additional day’s pay:

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.

(5) Subsection (1) shall not apply, as respects a particular public holiday, to an employee who is, other than on the commencement of this section, absent from work immediately before that public holiday in any of the cases specified in the Third Schedule.”

The Third Schedule of the Act provides that “Each of the following are cases mention in Section 21(5) of the absence by the employee concerned from work immediately before the relevant holiday: such an absence in excess of 26 consecutive weeks, by reason of an injury sustained by the employee in any accident (not being an accident referred to in paragraph 1) or by reason of any disease from which the employee suffers or suffered”.

The complainant was absent from work on continuous sick leave from 11th September, 2016 to 7th April, 2017 when she resigned from her employment. The combined effect of the provisions of Section 21(5) and the Third Schedule of the Act when applied to the present case means that the complainant is not entitled to compensation or cesser pay in respect of any public holidays that occurred after 10th March, 2017. As the present complaint was submitted to the Director General of the WRC on 15th September, 2017, I only have jurisdiction to inquire into contraventions of the Act which may have occurred in the six-months preceding the referral, i.e. the period from 16th March, 2017 to 15th September, 2017. In the circumstances, I find that the complainant did not have an entitlement to cesser pay in respect of any public holiday entitlements occurring during this period. Accordingly, I find that the complaint in relation to the alleged contraventions of Section 21 of the Act is not well founded.

Section 23 of the Organisation of Working Time Act 1997

The next issue which I must decide relates to the complainant’s claim that the respondent has contravened the provisions of Section 23 of the Organisation of Working Time Act 1997 in relation to annual leave entitlements accrued while she was on sick leave.

The relevant Law

Section 86(1) of the Workplace Relations Act, 2015 amended Sections 19, 20 and 23 of the Organisation of Working Time Act, 1997, so as to comply with the decision of the CJEU in the case ofSchultz - Hoff v Deutsche Rentenversicherung Bund (C-350/06) [2009] E.C.R. I-179; [2009] 2 C.M.L.R. 27on the accrual of annual leave while on sick leave.

Section 86(1)(a) amended Section 19 of the Organisation of Working Time Act, 1997 which provides that:

“For the purposes of this section, a day that an employee was absent from work due to illness shall, if the employee provided to her employer a certificate of a registered medical practitioner in respect of that illness, be deemed to be a day on which the employee was

(a) At her place of work or at her employer’s disposal and

(b) Carrying on or performing the activities or duties of her work.”

Section 86(1)(c) amended Section 23 of the Act and provides that:

“Where an employee ceases to be employed and the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee, the employee shall as compensation for the loss of that annual leave, be paid by her employer an amount equal to the pay calculated at the normal weekly rate.”

This means that on termination of employment, payment in lieu of untaken accrued annual leave will apply to leave which was untaken as a result of certified illness in circumstances where the employee leaves the employment within a period of 15 months following the end of the leave year during which the statutory leave entitlement accrued.

The Complainant was on Maternity Leave from 14th March, 2016 to 10th September, 2016. She commenced a period of sick leave immediately thereafter and was on certified sick leave from her employment from 11th September 2016 to 7th April, 2017 when she resigned from her employment. The Complainant tendered her resignation from the employment on 7th April 2017. I am satisfied that the complainant had a contractual entitlement to 20 day’s annual leave per annum. The complainant adduced evidence that she received payment in respect of 96 hours accrued annual leave entitlements, being the equivalent of 15 days’ annual leave, on the cessation of her employment. The complainant’s oral evidence on this issue was corroborated by the payslip which she submitted in respect of payments made to her by the respondent on the cessation of her employment.

Section 2(1) of the Act defines the Leave Year as “a year beginning on any first day of April”. Therefore, in accordance with the provisions of Section 23(1)(b)(iii) of the Act the annual leave years covered by this complaint is the 2016/2017 and the 2017/2018 leave years.

I have found the complainant to be a credible witness and based on her uncontested evidence, I find that she is entitled to cesser pay in respect of annual leave accrued while on sick leave for the 2016/2017 and the 2017/2018 leave years as follows:

-          2016/17 leave year – the complainant had an entitlement to 20 days’ annual leave during this period and received payment of €912.00 in respect of annual leave entitlements on the termination of her employment i.e. the equivalent of 15 days’ annual leave. I find that the complainant is due cesser pay in respect of 5 days’ annual leave accrued on certified sick leave during the 2016/17 leave year.

-          2017/18 leave year – the complainant was on certified sick leave from 1st April, 2017 to 7th April, 2017 when her employment terminated and has accrued an annual leave entitlement of 2.56 hours i.e. being the equivalent of 8% of the 32 hours she is deemed to have worked during this period.

Complaint relating to a contravention of Section 21 of the Organisation of Working

In accordance with the provisions of Section 27 of the Act, I declare that the complaint under Section 21 of that Act is not well founded.

Complaint relating to a contravention of Section 23 of the Organisation of Working

In accordance with the provisions of Section 27 of the Act, I declare that the complaint under Section 23 of that Act is well founded and that the Respondent has contravened the Complainant’s annual leave entitlements. I order the respondent to pay the complainant:

-          €304.00, subject to any lawful deductions, in respect of the 2016/17 annual leave year, and

-          €24.32, subject to any lawful deductions, in respect of the 2017/18 annual leave year.

-          €200.00 in compensation for the contravention of Section 23 of the Organisation of Working Time Act 1997.

Organisation of Working Time Act 1997 – Section 21 – Public Holiday entitlements – Section 23 – Accrued Annual Leave entitlements