Complainant

Respondent

Anonymised Parties

A Healthcare Assistant

A Nursing Home

Representatives

In Person

In Person

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-00015415-001

27/10/2017

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

CA-00015415-002

27/10/2017

The Complainant was employed by the Respondent as a Healthcare Assistant at its nursing home from 16 January, 2014 to 23 October, 2017 when she terminated her employment. The Complainant worked an average of 36 hours per week and was paid a rate of €10.50 per hour.

The Complainant claims that she did not receive payment in relation to annual leave accrued while on sick leave during 2016 or in respect of outstanding annual leave entitlements accrued during 2016 and 2017 upon the cessation of her employment. The Complainant also claims that the Respondent has contravened the provisions of Sections 21 of the Organisation of Working Time Act 1997 in relation to her public holiday entitlements during her employment.

CA-00015415-002 – Complaint in relation to Annual Leave entitlements (Section 23)

The Complainant is entitled to four weeks annual leave each year in accordance with the terms of her contract of employment. The Complainant was absent from work on certified sick leave from 25 March, 2016 for a period of three months following a car accident. The Complainant contends that she only received payment in respect of three weeks annual leave during 2016 and that she is entitled to a further week’s pay in respect of the period that she was absent on sick leave.

The Complainant contends that she resigned from her position with effect from 23 October, 2017 after working the two week’s notice required under her contract of employment. The Complainant claims that she had taken only two week’s annual leave during 2017 and that she was entitled to payment in respect of at least some of the two weeks outstanding annual leave entitlement upon the cessation of her employment.

CA-00015415-002 – Complaint in relation to Public Holiday entitlements (Section 21)

The Complainant contends that during the four years of her employment with the Respondent she received compensation for public holidays which fell on a day that she was rostered to work. However, the Complainant contends that she did not receive any compensation during her period of employment in respect of public holidays that fell on a day that she was not rostered to work. The Complainant claims that she queried this matter with the Respondent and was informed that she was not entitled to any payment in relation to public holidays that fell on a day that she was not rostered to work.

CA-00015415-002 – Complaint in relation to Annual Leave entitlements (Section 23)

The Respondent did not contest the Complainant’s claim in relation to payment in respect of annual leave accrued whilst on sick leave during 2016. The Respondent conceded that the Complainant had an outstanding entitlement of one week’s pay in respect of annual leave accrued while she was absent from work on certified sick leave during 2016.

The Respondent disputes the Complainant’s claim that she was entitled to one week’s pay on cessation of her employment in relation to annual leave accrued during 2017. The Respondent contends that the Complainant was paid in respect of three week’s annual leave during the calendar year 2017 (i.e. that she was paid in respect of 36 hours in respect of the following weeks 28 January, 2017 – 3 February, 2017; 1 April, 2017 to 6 April, 2017; 12 August, 2017 to 18 August, 2017.

CA-00015415-002 – Complaint in relation to Public Holiday entitlements (Section 21)

The Respondent did not contest the Complainant’s claim in relation to her public holiday entitlements at the oral hearing of the complaint. The Respondent conceded that the Complainant was entitled to compensation in respect of the three public holidays which occurred during the cognisable period in 2017, namely the May Bank Holiday, June Bank Holiday and August Bank Holiday.

The Complainant referred her complaint under the Act to the Workplace Relations Commission on 27 October, 2017. By application of the time limit provided for at Section 41(6) of the Workplace Relations Act 2015 the cognisable period for the purpose of this claim is confined to the six-month period ending on the date on which the complaint was presented to the WRC. Therefore, the cognisable period covered by the complaint is the six-month period from 28 April, 2017 to 27 October, 2017.

CA-00015415-001 – Complaint in relation to Annual Leave entitlements (Section 23)

Annual Leave accrued on sick leave

The first element of the Complainant’s complaint is 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 absent on certified on sick leave.

The Complainant claims that she has an outstanding entitlement of one week’s pay in respect annual leave accrued while she was absent from work on certified sick leave during 2016. The Complainant adduced evidence that she was absent from work on certified sick leave for a period of three months from 25 March, 2016 following a road traffic accident. The Respondent did not contest the Complainant’s claim and conceded that she had an outstanding entitlement of one weeks’ pay in respect of annual leave accrued while she was absent from work on certified sick leave during 2016.

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 I am satisfied that any outstanding annual leave accrued during the annual leave year 2016/2017 (i.e. 1 April, 2016 to 31 March, 2017) is covered by this complaint.

Having regard to the Complainant’s uncontested evidence, I find she is entitled to cesser pay of one week in respect of annual leave accrued while on sick leave for the 2016/2017. The Complainant worked an average of 36 hours per week and was paid a rate of €10.50 per hour. I therefore calculate her entitlement as being €378.00 i.e. the equivalent of one week’s pay.

Annual leave entitlement on cessation of employment

The second element of the Complainant’s claim is that she had taken only two week’s annual leave during the calendar year 2017 and she claims that she was entitled to payment in respect of at least some of the two weeks outstanding annual leave entitlement upon the cessation of her employment.

As stated above, 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 I am satisfied that any outstanding annual leave accrued during the annual leave years 2016/2017 and 2017/18 (i.e. 1 April, 2016 to 31 March, 2017 and 1 April, 2017 to 31 March, 2018) is covered by this complaint.

Having regard to the evidence adduced by the Respondent, I am satisfied that the Complainant was paid in respect of three week’s annual leave during the annual leave year 2016/2017, namely from 24 September, 2016 – 30 September, 2016; 5 November, 2016 – 11 November, 2016; 28 January, 2017 – 3 February, 2017. The Respondent conceded that the Complainant had an entitlement to cesser pay of one week in respect of annual leave accrued while on sick leave during the aforementioned annual leave year i.e. 2016/2017 (this issue has been dealt with in my findings above). In the circumstances, I find that the Complainant’s entitlement to annual leave for the year 2016/2017 has been satisfied in accordance with the relevant provisions of the Act.

The Respondent adduced evidence that the Complainant was paid in respect of two week’s annual leave covering during the annual leave year 2017/2018, namely for the weeks 1 April, 2017 – 6 April, 2017 and 12 August, 2017 to 18 August, 2017. The Complainant’s employment terminated on 23 October, 2017. In the circumstances, I find that the Complainant had an outstanding entitlement to annual leave accrued during the period from 1 October, 2017 to 23 October, 2017 on the cessation of her employment i.e. a period of three weeks. Accordingly, I find the Complainant had accrued the following entitlement of 8% of 108 hours worked during this period = 8.64 hours x €10.50 per hour = €90.70).

CA-00015415-002 – Complaint in relation to Public Holiday entitlements (Section 21)

The Complainant’s employment terminated on 23 October, 2017 after she resigned from her employment. The Complainant claims that she had an outstanding entitlement to three public holidays that occurred during the cognisable period i.e. from 28 April, 2017 to 23 October, 2017, namely the May Bank Holiday, June Bank Holiday and August Bank Holiday. The Respondent conceded that the Complainant had not received her entitlements in respect of theses public holidays.

In the circumstances, I find that the complaint is well founded and that the Complainant is entitled to compensation in respect of the three aforementioned public holidays which occurred during the cognisable. The Complainant worked an average of 36 hours per week and was paid a rate of €10.50 per hour. I therefore calculate the economic loss of the three public holidays at €226.80.

CA-00015415-001 – Complaint in relation to Annual Leave entitlements

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

-          €378.00, subject to any lawful deductions, cesser pay in respect of annual leave accrued while on sick leave for the 2016/2017, and

-          €90.70, subject to any lawful deductions, cesser pay in respect of annual leave entitlements accrued during the annual leave year 2017/18, and

-          €100.00 in compensation for the contravention of Section 23 of the Organisation of Working Time Act 1997.

CA-00015415-002 – Complaint in relation to Public Holiday entitlements

In accordance with the provisions of Section 27 of the Act, I declare that the complaint is well founded and that the Respondent has contravened the Complainant’s public holiday entitlements contrary to Section 21 of the Act. I order the Respondent to pay the Complainant:

-          €226.80, subject to any lawful deductions, for the economic loss of not receiving public holiday entitlements in respect of the breach of Section 21, and

-          €100.00 in compensation for the contravention of Section 21 of the Organisation of Working Time Act 1997.

Organisation of Working Time Act 1997 – Section 21 – Public Holiday entitlements – Section 23 – Annual Leave entitlements – Cesser Pay – Complaint well founded - Compensation