Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00018763-001

27/04/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00018763-002

27/04/2018

The Worker commenced her employment with a named Care Centre in January 2002. The Centre was subsequently taken over by another health service provider, the Employer. The Worker claims that she has not received her annual leave and public holiday entitlements as per arrangements agreed with the first employer. The Employer rejects the claims.

SIPTU on behalf of the Worker submits that the Worker commenced her employment with a named Care Centre in January 2002 as a housekeeper. Subsequently, the Centre was taken over by the Employer. The Worker retained her terms and conditions of employment as per her contract of employment with the first employer. The Worker claims that she received her full entitlement of 20 days annual leave as per her terms and conditions of employment up until July 2017. The Worker claims that in July 2017 her Line Manager advised her that she was only entitled to 80 hours leave per year, which equates to 16 days based on her working 20 hours per week. The Worker argues that her entitlement should be 20 days as per her terms and conditions of employment. SIPTU noted that the Respondent’s employees in fact receive 23 days leave whereas the Worker has 20 days. The Worker submits that her hours of work are 9.00am-2.00pm Tuesday to Friday (inclusive) for the last ten years. Prior to this her hours were 9.00am-1.00pm Monday to Friday (inclusive).

SIPTU contends that by email of 22nd February 2018 from HR Manager, Mr H to SIPTU Mr H confirms: “I have now reviewed [the Worker’s] records and can confirm that there has been no reduction in her annual leave entitlement. You have confirmed below that [the Worker] has an annual leave entitlement of 20 days. My understanding is that this entitlement has been carried forward by [the Worker] when she transferred to the employment of [the Respondent] under a transfer of undertakings arrangement between [the Respondent] and [the previous employer]. It is also my understanding that [the Worker] opted to maintain her [previous employer] terms and conditions following the transfer”. However, SIPTU claims that in the same email Mr H puts forward the case that the Worker, based on her hours is entitled to 80 hours or 16 days leave.

SIPTU argues that the Worker is entitled to 20 days annual leave as per her Terms and Conditions of Employment. The Employer should not have reduced her annual leave entitlement from that set out in her Terms and Conditions as she retained same when she transferred over, and this has been verified by the Employer.

SIPTU seeks a recommendation that the Worker be restored with her 20 days annual leave from 2017.

The Employer submits that the Worker was first employed by a named Care Centre on 28th January 2002. Her contract stipulated a working week of 20 hours. The contract also stipulated an annual leave entitlement of 20 days. On 1st January 2004 a transfer of undertakings took place. Following the transfer, staff transferred, including the Worker had the option of transferring to standard Employer’s terms and conditions and a letter to this effect was issued to the Worker in November 2005. The letter also contained a comparison between the current and the new sets of terms and conditions. The Worker did not respond to the correspondence issued and did not return the relevant signed form requesting a transfer to the Employer’s terms and condition and remained on those she was originally employed under. In December 2013 the Worker was transferred to a named Agency, the Employer. The Employer submits that it is clear from the Worker’s contract that she was employed on initial terms and conditions which allowed for 20 days annual leave. Upon employment the Worker worked 5 days, Monday to Friday, at a rate of 4 hours work per day. Based on this, her annual leave entitlement of 20 days amounted to 80 hours (20 x 4-hour days). In November 2007 and at the Worker’s request, her working week of 20 hours changed to a 4-day week but with the same weekly total of 20 hours. The Employer argues that although the amount of annual leave awarded via contract to the Worker was denominated in days, this could in fact be described a headline figure. For practical purposes and most importantly to ensure equity amongst staff who work varying hours and shift patterns, the payroll system records annual leave in terms of “absence hours”, “absence days” and “calendar days”. This method of recording is essential to ensure no staff member is unduly penalised or advantaged based on the length of day they work or their weekly shift pattern. The Employer submits that a review of the Worker’s annual leave record dating back to December 2004 shows that annual leave has always been entered on the system in an identical and correct manner. Prior to November 2007 when the Worker worked a 5-day week, an annual leave day was debited to the tune of 4 hours as this was the length of the day she was working on the day leave was taken. Following her change in November 2008 to working a 4-day week, any annual leave day was debited to the tune of 5 hours as this was now the length of the day she worked.

For information purposes the Employer submits that it also uses a ready reckoner to assist those staff who work less than full time hours. This ready reckoner takes into account the fulltime hours applicable to the grade in question, the number of hours actually worked by the staff member as well as the annual leave entitlement actually accruing to a fulltime member of staff at this grade. When this information is entered in the ready reckoner in the Worker’s individual circumstances, a figure of 80 hours annual leave also emerges. The Worker is effectively working 0.51 of the hours of a fulltime employee at this grade and as a consequence, is allocated 0.51 of that fulltime worker’s annual leave entitlement i.e. 80 hours. In conclusion, the Employer submits that the Worker’s historical annual leave entitlement is and remains 20 days. At the time she was employed she worked a 4-hour day so in effect, this quantum of leave amounted to 80 hours per annual leave year. In 2005 the Worker passed up on an opportunity to increase her annual leave entitlement to 23 days per annum by declining to move to the Employer’s terms and conditions. The Employer contends that there was no reduction in the Worker’s annual leave entitlement or change in how it was managed when on her own request she moved from working five 4-hour days to working four 5-hour days. Furthermore, there was no reduction in annual leave entitlement or changed in the manner in which it was managed when the Worker, at her own request, moved from working Monday-Thursday to Tuesday-Friday. The Employer argues that the logic of the Worker’s submission can only be that she is entitled to 20 annual leave days regardless of the length of her working day. This would in effect see her be awarded 100 hours annual leave (20 x 5-hour days). This logic is flawed as it would inevitably lead to gross inequities among workers who work similar total hours per week but varying daily hours. For example, a worker working two 10-hour days per week would in effect be awarded 20x 10-hour days leave (200 hours).

The Worker’s submission is that her amount of leave is not being honoured. The Employer submits that is not the case. HR records clearly show that there has been no reduction whatsoever in the Worker’s annual leave entitlement and that it has been managed in the same manner since the commencement of electronic record in late 2004. In support, the Employer exhibited records demonstrating that the Worker is receiving her full contractual annual leave entitlement for her grade when benchmarked against a fulltime worker in this grade.

It was not in dispute between the parties that the Employer has an internal dispute resolution mechanism for addressing grievances and disputes. The Worker confirmed that she was aware of the internal grievance procedures. The Worker was of the opinion that her grievance was raised by SIPTU with the senior management. The Employer contended that the Worker has not fully exhausted these internal grievance procedures prior to the referral of the present dispute to the Workplace Relations Commission.

It is well established by the Workplace Relations Commission and the Labour Court that they do not intervene in a dispute under Section 13 of the Industrial Relations Act 1969 until all internal grievance procedures have been fully exhausted. This has clearly not happened in the circumstances of the present dispute.

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute. Accordingly, I recommend that the Worker invokes and exhausts all internal dispute resolution mechanisms for addressing her grievances before considering the further referral of this matter to the Workplace Relations Commission under Section 13 of the Industrial Relations Act 1969.

SIPTU on behalf of the Worker submits that the Worker always took time off in lieu for public holidays up until March 2017. This was custom and practice. In March 2017 the Employer issued a memo in relation to the payment of public holidays entitlements for 5/5 non-whole time staff. This stated that from 1st March 2017 all staff who work non-whole time and are rostered off on a public holiday will be compensated in monetary terms. However, SIPTU argues that the Worker is aware that another colleague remains on time off in lieu of the public holiday.

SIPTU argues that, as the Worker had always availed of time off in lieu, which was custom and practice, she wishes to be restored to time in lieu. Time in lieu is still available to one of her colleagues so there is clearly no standard approach in place. SIPTU seeks a recommendation that the Worker be given time off in lieu in respect of public holidays.

The Employer submits that at the time the issue arose, the Worker continued to work a 20-hour week. That working week entailed her working from Tuesday through Friday for 5 hours each day i.e. four 5-hour days. Prior to April 2017 in line with the Organisation of Working Time Act, 1997 part-time, 5/5 staff who were rostered off when a public holiday falls, were compensated one fifth of their contracted pay in either monetary terms or time off in lieu. The Employer contends that Section 21 of the Act allows for the employer to determine by which method a worker is compensated for a public holiday. At the time of the establishment of the named Agency the method of compensation for those staff who work non-wholetime hours and were normally rostered for rest of the day a public holiday fell, varied depending on location. In line with its entitlement to do so under Section 21 of the Act the Employer decided that with effect from 1st March 2017 all staff who work non-wholetime hours on a Monday to Friday basis and are rostered off when a public holiday falls, will be compensated in monetary terms only. This change was part of an ongoing process to adopt a standard approach to such matters across the Employer. A memo to this effect was issued from the office of the National Director of HR. The Employer contends that, as per S.I. 475/1997 in such cases a worker will be compensated monetarily to the order of one-fifth of their normal weekly pay. The Employer submits that this method of compensation for all staff in this category was implemented as advised on 1st March 2017. The payment is automatically generated by HR/Payroll and reflected in staff payslips. A review of the Worker payslip for the most recent public holiday (6th August 2018) shows that this system been applied correctly and she received monetary compensation to the tune of one-fifth of her working week (4 hours).

In conclusion, the Employer submits that the Worker is receiving her statutory entitlement to public holidays. The Organisation of Working Time Act, 1997 allows for the employer to determine the manner in which such leave is taken. The entitlement is calculated as per S.I. 475/1997.

Similarly to my finding ins the above CA- 00018763-001 it was not in dispute between the parties that the Employer has an internal dispute resolution mechanism for addressing grievances and disputes of which the Worker was aware. The Worker was of the opinion that her grievance was raised by SIPTU with the senior management. The Employer contended that the Worker has not fully exhausted these internal grievance procedures prior to the referral of the present dispute to the Workplace Relations Commission.

It is well established by the Workplace Relations Commission and the Labour Court that they do not intervene in a dispute under Section 13 of the Industrial Relations Act 1969 until all internal grievance procedures have been fully exhausted. This has clearly not happened in the circumstances of the present dispute.

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute. Accordingly, I recommend that the Worker invokes and exhausts all internal dispute resolution mechanisms for addressing her grievances before considering the further referral of this matter to the Workplace Relations Commission under Section 13 of the Industrial Relations Act 1969.

Public holidays-annual leave-internal procedures not exhausted