ADJUDICATION OFFICER DECISION
Adjudication Reference:
Parties:
| Complainant | Respondent |
Anonymised Parties | Legal Secretary | Solicitor Firm |
Representatives | Self | Self |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
CA-00023046-001 | ||
CA-00023046-002 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).
Background:
The Complainant withdrew CA/23046/002 at the hearing. Re: CA/23046/001. The Complainant is a legal secretary and the Respondent is a solicitor firm. The Complainant went on sick leave in May 2017 and never returned to work. She resigned from employment with an effective date of the 22nd of October 2018.
Her compliant was lodged with Workplace Relations on the 5th of November 2018. |
Summary of Complainant’s Case:
The Complainant claimed 12 days holidays for 2017 and 17.5 days for 2018. She also claimed public holidays for 5th June 2017, 7 August 2017 and 30 October 2017. |
Summary of Respondent’s Case:
The Respondent accepted that holiday entitlement did accrue during sick leave. |
Findings and Conclusions:
Re: CA/23046/001
The Organisation of Working Time Act 1997 outlines an employee’s statutory entitlement to take paid annual leave during a prescribed “leave year” being the 1st April to the 31st March.
Section 86 of the Workplace Relations Act 2015 provides a statutory basis for the accrual of annual leave for employees absent from work on certified sick leave.
Section 86 of the Workplace Relations Act 2015 amended section 20(1)(c)(iii) of the Organisation of Working Time Act 1997 as follows
20. Times and pay for annual leave (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 take all or 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] (Emphasis added) An employee who is on sick leave is not able to take up their annual leave are able to carry over annual leave accrued during sick leave for a period of fifteen months after the leave year in question.
The amendment to the Organisation of Working Time Act by the Workplace Relations Act 2015 does not refer to public holidays. Complaints that an employer has contravened any “relevant provision” should be presented to the Director General of the Workplace Relations Commission under Section 27 of the Organisation of Working Time Act. The complaint must be presented within six months of the alleged contravention unless I am satisfied that failure to present the complaint within that period was due to reasonable cause. In those circumstances I can extend the time limit by a further six months. The Complainant lodged her case on the 5th November 2018. The 12-month extended time limit to lodge claims for her listed Public holidays had expired at that time. Therefore, I have no jurisdiction to hear her complaints regarding public holidays.
No evidence was presented to me to indicate that the Complainant took any action during her employment to assert her rights under the Organisation of Working Time Act. She only did so after her employment terminated. These factors do not excuse the Respondent from liability for its failure to pay holiday pay during sick leave. The Respondent accepted that the Complainant was due the holidays claimed therefore I award the sum of 29.5 days payable at €100 per day gross. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Re: CA/23046/001: The complaint is well founded as regards holiday pay. I award the Complainant the sum of €2,950.00 gross payment in respect of remuneration which is taxed in the normal way.
I have no jurisdiction to hear the complaint as regards public holiday pay.
Re: CA/23046/002 the Complainant withdrew this claim at the hearing. |
Dated: 19/08/2019
Workplace Relations Commission Adjudication Officer:
Key Words:
Holiday accruing during sick leave |