Complainant

Respondent

Anonymised Parties

A Catering Assistant

A Retailer

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-00020102-001

29/06/2018

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

CA-00020105-001

29/06/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991(Withdrawn at Hearing)

CA-00021531-001

28/08/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00021531-002

28/08/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969( Withdrawn at Hearing)

CA-00021531-003

28/08/2018

This case involves a Polish Catering Assistant who had worked at the Respondent business since June 1, 2007. The Complainant is currently on sick leave since April 2016.

She submitted that

The Respondent made some hand-written notes for the Attention of the hearing but made no appearance to advance on any of the contents.

On the day of hearing, the compliant withdrew the claims:

CA-00021531-001Payment of Wages Act

CA -00021531-003 Industrial relations.

She also withdrew a claim submitted on 28 August 2018 under Employment Equality Legislation.

The case is confined to two claims under the Organisation of Working Time Act, 1997 and one claim submitted under Terms of Employment (Information) Act, 1994.

The case was postponed on 17 October 2018 due to the Respondent bereavement. On 30 November 2018, the Respondent wrote to WRC indicating that he would not attend the hearing on 6 December 2018. He indicated that his Financial advisors had advised him to close his shop.

The Respondent expressed an opinion that his nonappearance might beneficial to the complainant. He indicated that he was “financially in ruin “and was not able to pay an award outside € 5 to € 10 euro per week.

The Complainant is a Polish National who has worked as a Catering Assistant since 1 June 2007. She is presently on extended sick leave. She presented her case with her Solicitor and with the benefit of interpretation.

Her Solicitor confirmed that when at work, she received €440.00 gross pay per week for a 48-hour week. She did not have the benefit of a contract of employment. the Complainant submitted that she had experienced difficulties at work. The Complainant also confirmed that a Personal Injuries claim was live in her situation.

The Complainant sought an extension of time on reasonable cause grounds.

She recalled her workload had increased during the boom. She had begun to experience repetitive colds working in the semi outdoor setting. She went on sick leave in April 2016 and was not well enough to return to work. She has subsisted on DSP payments, copies of the records were exhibited at hearing.

She wrote to the Respondent seeking her public holiday pay

CA -00020102-001 Organisation of Working Time Act 1997

The Complainant submitted that she had not received her Public Holiday entitlements under the Act.

CA -00020105-001 Organisation of Working Time Act 1997

The Complainant submitted that she had not received annual leave

CA -00021531-001 Statement of Terms of Employment

The Complainant submitted that she had not received a statement in writing on her terms of employment

The Respondent did not appear at hearing to address these claims. He sent two hand written notes to the WRC which indicate that he did not intend to present a response at hearing. He stated that his business was in ruins and he anticipated closing the business.

His note dismissed the instant claims.

CA -00020102-001 Organisation of Working Time Act 1997

There was no appearance by or on behalf of the Respondent at hearing. He did not file a defence to the claim.

CA -00020105 Organisation of Working Time Act 1997

There was no appearance by or on behalf of the Respondent at hearing. He did not file a defence to the claim.

CA -00021531-001 Statement of Terms of Employment

There was no appearance by or on behalf of the Respondent at hearing. He did not file a defence to the claim.

I have given some attention to these claims. I noted that the complainant presented as very vulnerable at hearing. I reviewed the DSP records presented at hearing, which recorded a continuous reliance on DSP subsistence payments from April 2016. The Complainant has not been passed for return to work. She has not resigned her employment.

I have considered the application for an extension of time in accordance with Section 41(8) of the Workplace Relations Act, 2015. I accept the grounds advanced by the Complainant at hearing. She has been ill for an extended period. The cognisable period of this claim has been extended 29 August 2017 to 28 August 2018.

CA -00020102-001 Organisation of Working Time Act 1997

Section 19(2) of the Act provides for a restorative process of annual leave during sick leave. Providing a medical certificate is presented to the employer, the day reckonable as annual leave will not be regarded as same. This captures the right to paid holidays prescribed by Article 7 of the Working Time Directive, Stringer and Schultz Hoff C 520/06and C 350/06.

Section 20 of the Act sets out the circumstances which are to prevail in restoring annual leave post sick leave.

Section 20.— (1) The times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements and subject—

(a) to the employer taking into account—

(i) the need for the employee to reconcile work and any family responsibilities,

(ii) the opportunities for rest and recreation available to the employee,

( b) to the employer having consulted the employee or the trade union (if any) of which he or she is a member, not later than 1 month before the day on which the annual leave or, as the case may be, the portion thereof concerned is due to commence, and

[ (c) to the leave being granted —

(i) within the leave year to which it relates,

(ii) with the consent of the employee, within the period of 6 months after the end of that leave year, or

(iii) where the employee —

(I) is, due to illness, unable to take all or any part of his or her annual leave during that leave year or the period specified in subparagraph (ii), and

(II) has provided a certificate of a registered medical practitioner in respect of that illness to his or her employer,

within the period of 15 months after the end of that leave year.

It is of note that the complainant has not been able to return to work and annual leave is normally an issue to be agreed in terms of a return to work plan/cessation of employment. Section 20(3) of the Act provides that more favourable arrangements can be agreed between Employer and Employee.

Section 20 (3) Nothing in this section shall prevent an employer and employee from entering into arrangements that are more favourable to the employee with regard to the times of, and the pay in respect of, his or her annual leave.

I note that the Complainant has been sanctioned for a continuous period of DSP support payments. These will be contingent on the provision of medical certificates.

The Complainant has sought a cumulative payment in respect of both claims. The Respondents attendance at hearing would have assisted greatly as I could have examined the statutory records maintained at the business.

However, I must confine my deliberations to the restrictions contained in Section 20(1)(c ) (iii) of the Act . The complainant is required to be either in the workplace to avail of accumulated annual leave on sick leave or it may be triggered by Section 23 of the Act on cessation of employment .

I am not in a position to grant accumulated leave at this juncture , but would advice the parties to reflect on the accumulated entitlement in the potential climate of redundancy or other termination of employment .

I find her claim to be not well founded.

CA -00020105 Organisation of Working Time Act 1997 Public Holidays

I have considered this claim. Section 21 of the act was not amended to allow for time spent on sick leave to count as time spent working for the accrual of public holidays. However,the third schedule of the Organisation of Working Time Act, 1997 permits public holiday entitlement to accrue during certain periods of absence.

 Each of the following are the cases mentioned in section 21 (5) of absence by the employee concerned from work immediately before the relevant public holiday:

1. such an absence, in excess of 52 consecutive weeks, by reason of an injury sustained by the employee in an occupational accident (within the meaning of Chapter 10 of Part II of the Social Welfare (Consolidation) Act, 1993),

2. such an absence, more than 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,

3. such an absence, more than 13 consecutive weeks, caused by any reason not referred to in paragraph 1 or 2 but being an absence authorised by the employer, including a lay-off,

4. such an absence by reason of a strike in the business or industry in which the employee is employed.

The cognisable period of this claim covers 29 August 2017 to 28 August 2018. The Complainant has been on extended sick leave since April 2016. I find that she accrued public holiday entitlement under sub section (2) above i.e. more than 26 consecutive weeks. I find that the complainant is entitled to avail of 4.5 public holidays on illness grounds during the cognisable period.

I find the claim to be well founded.

CA -00021531-001 Statement of Terms of Employment

The Complainant submitted that she had not received a written statement of her terms of employment in accordance with Section 3 of the Act. I accept this undisputed position and have established a continuous breach of Section 3 of the Act. I find her claim to be well founded.

Annual Leave, Public Holidays, Terms of employment