Complainant

Respondent

Anonymised Parties

A Cleaning Assistant

A Cleaning Company

Representatives

Citizens Information Service

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-00026645-001

28/02/2019

The Complainant started her employment with the Respondent on 11th September 2006.

She referred her claim to the Director General of the WRC on 28th February 2019 alleging that she did not receive her annual leave entitlements.

The Respondent did not attend the adjudication hearing. A letter notifying the Respondent of the time, date and venue of the adjudication hearing was issued on 17th May 2019. Following the Complainant’s request, the original hearing was postponed and a letter notifying the parties of same was issued on 27th May 2019. The second hearing, in a venue closer to the Complainant’s residence and place of employment was scheduled for 26th September 2019. A letter notifying the parties of same was issued on 28th August 2019.

The Respondent did not apply for a postponement and did not indicate any difficulties attending the hearing.

I waited some time to accommodate a late arrival. Having taken these steps, I proceeded with the adjudication hearing in the absence of the Respondent.

The Complainant submits that she commenced work for Company A on 11th September 2006 as a cleaning assistant. Her employment transferred to the Respondent under TUPE regulations with effect from 2nd July 2018.

The Complainant submits that she worked 40 hours a week and prior to her maternity leave she was paid €10.24 per hour and she had an entitlement to 20 days of annual leave per annum. The Complainant submits that she was on maternity leave from 6th February 2016 to 6th August 2016 and on illness benefit from 7th August 2016 to 12th February 2018. She requested her holiday entitlements by email on 5th February 2018. Initially, she was told that she was entitled to 320 hours annual leave as calculated by Corporate Solutions (CS) on 12th February 2018. This information was received from the Complainant’s manager at the time and Area Coordinator for Company A (IB).

The Complainant argues that, in accordance with the amendments to the statutory annual leave while on sick leave:

·         An employee’s annual statutory leave entitlement continues to build up during a period of certified sick leave.

·         An employee, who due to illness cannot take annual leave during the relevant leave year or the normal carry over period of 6 months, is entitled to an extended carryover period of 15 months after the leave year to take their annual leave.

·         If an employee leaves their job, they are entitled to a payment in lieu for any annual leave that accrued and was untaken as a result of illness.

The Complainant argues that as of 28th February 2019 she has taken 113 hours of annual leave and she believes she is still owed 207 hours.

The Complainant exhibited the following:

·         a copy of an undated email from Corporate Solutions to IB which was then forwarded by IB to the Complainant on 12th February 2018. The email states that the Complainant has accrued 320 holiday hours and notes: “She has to take 160 hours before the 11th June and the remainder before the end of September”.

·         A copy of an email from her Line Manager, LM dated 1st November 2018 outlining the her entitlement to 113 hours of annual leave.

·         A copy of an email she sent to the Respondent inquiring about the difference between 320 and 113 hours as outlined by the Respondent and confirming that all medical certificates were submitted.

·         A copy of a reply from the Respondent dated 16th November 2018 clarifying the Complainant’s entitlements and the Respondent’s obligations under the Act.

·         Copies of medical certificates for the period from 15th August 2016 to 13th September 2017 and 2nd February 2018 to 11th February 2018.

·         The Complainant exhibited also copies of email exchange with the named official in the Mediation Service of the WRC in respect of the mediation process the parties engaged in prior to this hearing. As per the Mediation Act, 2017 all communications (including oral statements) and all records and notes relating to the mediation shall be confidential and shall not be disclosed in any proceedings before a court or otherwise. I therefore disregard the contents of these records.

The Complainant cited Spijkers v Gebroeders Benedik Abbatoir CV and Alfred Benedik En Zonen BV in support of her claim.

In her direct evidence at the adjudication hearing, the Complainant confirmed that she was due to return to work on 12th February 2019. However, she emailed the Respondent inquiring about her annual leave as she did not want to return to work until she used up all her annual leave accrued. She did not return to work until mid-October 2018 when she worked some 10 hours in one week. She then decided that, because of problems with her knee, she would not work.

The Complainant argued that she received an email confirming that she had accrued 320 hours of leave. She conceded that she received 90 hours as per payslip dated 6th December 2018 and further 23 hours as per payslip dated 28th February 2019. However, she is seeking a payment for the remaining 207 hours.

The Complainant confirmed that she was not dismissed from her employment and she did not resign. She remains an employee of the Respondent.

The Respondent did not attend the adjudication hearing and was not represented.

Prior to the hearing, on 1st April 2019 the Respondent emailed the WRC noting that it had written to the Complainant regarding her query and believed the matter to be closed off.

The Respondent attached an email from Company A to the Respondent dated 1st November 2018 detailing the Complainant’s annual leave entitlements as follows:

“2016 – 120 hrs (40 taken that year already) – not entitled to these hours any more as longer than 15 months

2017 – 110 hrs - no cert on file for 16 weeks (50 hours)

2018 – 3 hrs – no cert after Feb 2018”

The Respondent forwarded also a copy of a spreadsheet. Regrettably, it is unclear what does it relate to. The Respondent forwarded also copies of the Complainant’s payslips dated 9th November 2018 (payment of 56 hours of annual leave), 23rd November 2018 (payment of 30 hours of annual leave), 7th December 2018 (payment of 23 hours of annual leave) and 21st December 2018 (payment of 4 hours of annual leave).

In its correspondence the Respondent refers to a letter it claims was issued to the Complainant on 14th March 2019. This letter however does not seem to be attached to the Respondent’s correspondence.

The Complainant alleges that she is owed 207 hours of annual leave accrued which she claims the Respondent did not pay to her.

Regrettably, the Respondent did not attend the adjudication hearing to contradict the Complainant’s evidence.

I note the dicta of the Supreme Court in Glegola v Minister for Social Protection [2018] IESC 65, where the Court held: “The fact that one party does not appear in proceeding should not mean that the opposing party’s contention is accepted by default and without question. There is, in my view, an obligation on any decision-maker to satisfy themselves that an applicant’s case is well founded, particularly where there is an obligation on the part of the State, or another party, not represented in the proceedings to satisfy the award.”

I, therefore, enquired into the Complainant’s case in respect of her complaint.

The Organisation of Working Time Act, 1997 provides as follows:

“Section 19(1A) For the purposes of this section, a day that an employee was absent from work due to illness shall, if the employee provided to his or 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 his or her place of work or at his or her employer's disposal, and

(b) carrying on or performing the activities or duties of his or her work.

(2) A day which would be regarded as a day of annual leave shall, if the employee concerned is ill on that day and furnishes to his or her employer a certificate of a registered medical practitioner in respect of his or her illness, not be regarded, for the purposes of this Act, as a day of annual 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 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.”

I have jurisdiction to investigate any complaint under the Organisation of Working Time Act 1997 for a period of six months from the date of the referral of complaint. The complaint was referred to the WRC on 28th February 2019. The cognisable period that may be investigated is therefore from 29th August 2018 to 28th February 2019. Section 2(1) of the Act defines the “leave year” as “a year beginning on any 1st day of April”. Therefore, I may adjudicate on the period from the 1st April 2018 to 28th February 2019.

The Complainant was on maternity leave from 6th February 2016 to 6th August 2016. She commenced a period of sick leave immediately thereafter.

The Complainant claims that she was on certified sick leave from 6th August 2016 until 11th of February 2018. She was fit to return to work on 12th February 2018. However, she did not do so and therefore, she ceased to accrue her entitlement to annual leave as of 12th February 2018 with the exception of one week in October 2018 when the Complainant claims she returned to work for 10 hours.

The Act is very clear that the times atwhich annual leave is granted to an employee is determined by his or her employer having regard to a number of requirements as outlined in Section 20(1) of the Act. The Complainant requested the Respondent to “…check for me how many holidays I have for years 2015, 2016 and 2017.” (email of 5th February 2018) to which she received a reply stating that she was entitled to 320 hours. On 7th February 2018 the Complainant emailed the Respondent “I would like to take all my holidays from Monday 12.02.2018”. The Respondent informed the Complainant that she needs to attend a welfare meeting as per the Respondent’s procedures and scheduled same on 15th February 2018. There was no further correspondence in regard of this request exhibited at the hearing to confirm whether or not the leave request was considered, approved or declined by the Respondent. In any event, the Complainant confirmed that no leave was given to her but she decided not to return to work after 11th February 2018.

Subsequent email correspondence is dated 1st November 2018 and it further clarifies the Complainant’s entitlements. Correspondence then ensued in respect of the difference between the February and November calculations.

The Complainant would have accrued 20 days of annual leave in the annual leave yearfrom 1st April 2016 to 31st March 2017. This entitlement would have to be granted within the period of 15 months after the end of that leave year i.e. by the 30th June 2018. The Complainant did not return to work by that date and therefore, the Complainant no longer has the entitlement to that leave.

In the period from 1st April 2017 to 11th February 2018 the Complainant would have accrued further annual leave, which entitlement ceased on 30th June 2019. The Complainant ceased to accrue annual leave entitlements from 12th February 2018 when she was declared fit to return to work but decided not to do so.

The Complainant claims that she returned to work in October 2018 when she worked 10 hours in one week, albeit she was not in a position to provide exact dates. There was no suggestion at the hearing that the Complainant requested her annual leave at this juncture or that the Respondent raised the matter. On her own evidence, the Complainant decided not to accept any work thereafter due to a health problem with her knee. However, she was not, and is not, on certified sick leave. Therefore, in the period from 1st April 2018 to the date of the hearing the Complainant accrued an entitlement to 0.8 hour of annual leave (8% of hours worked in October 2018).

As the Complainant remains in employment of the Respondent the option to be paid in lieu of annual leave does not arise.

Having considered the evidence before me, I find that the complaint as submitted is not well founded.

Annual leave accrual on sick leave