Complainant

Respondent

Anonymised Parties

Chef

Hotel

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-00018401-001

10/04/2018

The Complainant seeks payment for annual leave and public holidays which she states was accrued while she was on sick leave.

The Complainant worked as a Chef for the Respondent from 7th November 2007 until 31st December 2017. She was injured at work and was on sick leave from May 2015. She received a settlement but states that this did not include holiday pay which she contends she is entitled to under the Acts.

The insurance company of the Respondent settled a claim from the Complainant for €172,866.64 following an accident at work where she slipped on the floor.   As the full loss of earnings for the period from 10/5/2015 to 22/11/2017 which was calculated by the Complainant’s solicitor, the Respondent maintains that she received full pay for the period concerned.   Following an exchange of emails, the Complainant accepted that a further sum of €184.39 gross was correct for payment in lieu of annual leave in respect of the period 22/11/2017 to 31/12/2017. The insurance company stated that the settlement included all loss of earnings which included holiday pay. They also state that the claim was settled on a full and final settlement and cannot now be re-opened.

I appreciate the point made by the Respondent that the Complainant settled a personal injury claim in full and final settlement. However, I am obliged to consider the complaint before me under the Organisation of Working Time Act 1997 and the applicable law.

The Act was amended on 1 August 2015, in response to Court of Justice of the European Union rulings on accrual of annual leave entitlements during sick leave.

Section 86 (1) of the Workplace Relations Act 2015 provides:

“86.(1) The Organisation of Working Time Act 1997 is amended –

(a)    In section 19, by the insertion of the following subsection:

“(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”.,

 (b) in section 20, by the substitution of the following paragraph for paragraph (c) of subsection (1):

“(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”.

Section 23 governing the payment of compensation for the loss of annual leave accrued was amended to provide that on cessation of employment, payment in lieu of untaken annual leave will apply to leave which was untaken as a result of illness in circumstances where the employee leaves the employment within a period of 15 months following the end of the leave year during which the statutory leave entitlement accrued. In this case, the Complainant’s employment ended on 31st December 2017 and she was entitled to payment for annual leave accrued within the leave year 1 April 2016 to 31 March 2017 and 1 April 2017 to 31 March 2018 (pro rata).

I find that in this instant case the Complainant was entitled to payment for annual leave accrued on the date of the termination of her employment. The monetary value is €2,386.66 gross or 7 weeks pay. The Complainant has already received €184.39.   I find her complaint to be well founded and I require the Respondent to pay to the Claimant the sum of €2,202.27 gross.

In relation to the Complainant’s claim for payment for public holidays, section 23 of the Organisation of Working Time Act 1997 provides that compensation in respect of public holidays on cessation of employment is paid where an employee ceases to be employed during the week ending on the day before a public holiday and the employee has worked during 4 weeks preceding that week. In this instant case, this requirement was not fulfilled. I do not find the complaint in respect of public holidays to be well founded.