Complainant

Respondent

Anonymised Parties

Driver

A Charitable Service provider

Representatives

Mr. Pat Mellon – General Manager

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-00020611-001

18/07/2018

The Complainant states that he did not receive his full annual leave/paid holiday.

The law herein is governed by the Organisation of Working Time Act, 1997 and in particular:

Entitlement to annual leave.

19.—(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

(a)  4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b)  one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c)  8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.

(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.

(3)            The annual leave of an employee who works 8 or more months in a leave year shall, subject to the provisions of any employment regulation order, registered employment agreement, collective agreement or any agreement between the employee and his or her employer, include an unbroken period of 2 weeks.

(4)            Notwithstanding subsection (2) or any other provision of this Act but without prejudice to the employee’s entitlements under subsection (1), the reference in subsection (3) to an unbroken period of 2 weeks includes a reference to such a period that includes one or more public holidays or days on which the employee concerned is ill.

(5)            An employee shall, for the purposes of subsection (1), be regarded as having worked on a day of annual leave the hours he or she would have worked on that day had it not been a day of annual leave.

(6)            References in this section to a working week shall be construed as references to the number of days that the employee concerned usually works in a week.

Times and pay for annual leave.

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.]

(2)            The pay in respect of an employee’s annual leave shall—

(a)  be paid to the employee in advance of his or her taking the leave,

(b)  be at the normal weekly rate or, as the case may be, at a rate which is proportionate to the normal weekly rate, and

(c)  in a case in which board or lodging or, as the case may be, both board and lodging constitute part of the employee’s remuneration, include compensation, calculated at the prescribed rate, for any

such board or lodging as will not be received by the employee whilst on annual leave.

(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.

(4)            In this section “normal weekly rate” means the normal weekly rate of the employee concerned’s pay determined in accordance with regulations made by the Minister for the purposes of this section.

I have carefully considered the evidence adduced. The Complainant is a driver with the Respondent entity which is a not for profit organisation providing transport for persons availing of day care. The Complainant has worked with the Respondent company for twelve or thirteen years.

The Complainant signed his most recent Contract of Employment in and around early 2017. In September of 2017 there was a change in management and the new General Manager (PM) gave evidence on behalf of the Employer.

There is undoubtedly a workplace specific methodology for calculating annual leave. The complicated nature stems from the fact that individual drivers do a 40-hour week over the course of four days and accumulate holidays on that basis. Therefore, every day of annual leave counts as 1.25 days – to take account of the four day week and this is reflected in the entitlement to 24 days annual leave per annum.

It is noted that the Contract of Employment imposes (or at least urges) a requirement that drivers apply for and take some portion of their annual holidays in the month of August. This is requested in circumstances where the Respondent only has about 20% of it’s usual workload during this month as the day care centres and other service providers are generally closed for the month of August.

Towards the end of 2017 the Complainant approached his immediate line Manager PK regarding his annual leave. In his evidence, the Complainant says that he advised PK that for reasons of his own (namely an expected house move), he had not taken a substantial portion of his annual leave. The Complainant sought leave to take his annual leave before the end of the year. I have been advised by the Complainant that this conversation took place towards the end of November 2017 which left a limited amount of time for the taking of annual leave.

The Complainant says that he agreed with PK that the Complainant would be allowed to take a chunk of his annual leave from the middle of December and that the balance would have to be rolled into the 2018 year. I note that the Complainant confirmed in his evidence that he had 8 days of annual leave in December 2017.

It is an unfortunate fact that no-one other than the Complainant and the line Manager PK knew of this arrangement, especially as the said line Manger has since left the company in circumstances which involved bad feeling which situation is unrelated to the Complainant’s complaint. It is also hugely unfortunate that the Respondent’s Accounts Office was engulfed in a fire in February 2018 leaving he Respondent with very little paperwork against which he could check issues raised.

For reasons not explained, the Complainant waited until July of 2018 before he raised the issue of the roll-over of the balance of his 2017 days of annual leave into his 2018 leave. This was well over half way through 2018. I understand that there may have been some background difficulties stemming from the scheduling of annual leave earlier in 2018 to allow the Complainant attend a charity walk he wanted to go on.

When approached in July of 2018 the Respondent General Manager (GM) stated that he knew nothing of the arrangement which had been reached locally by the Complainant and the Line Manager PK with whom the GM was no longer in contact. From the paper work he was able to gather up the GM and the Complainant agreed that the Complainant had additionally taken a further three days annual leave before the December leave of eight days.

In fact, in the course of the evidence heard before this Adjudication process, the Complainant also gave evidence that he had also taken a further three days of annual leave earlier in 2017. It is therefore the case as accepted by both parties that that the Complainant had already taken 14 days of leave which equates to 17.5 for the purpose of deducting against the 24 allowed. The GM did query whether the Complainant had not taken any holiday in August 2017 when there was hardly any work to be done. The Complainant insists he did not take any holiday in August of 2017.

I note that when approached in July of 2018 the Respondent Manager had offered the Complainant with 5 days annual leave to make up any 2017 shortfall. This could be taken as leave or payment made in lieu. The Complainant rejected this offer and instead presented his own figures which tended to show that the Complainant was entitled to 74 hours which I understand equates to about 7.5 days.

I am satisfied that the Complainant entered into some sort of arrangement with PK though the details were not more widely known. I am also satisfied that the Complainant was not completely frank with his employer regarding the numbers of days of annual leave he had taken in 2017 and before the tranche of days taken in December 2017.

I accept that the Complainant is entitled to complete his 2017 annual leave entitlement either as days taken or as a payment in lieu whichever is his choice. Any such leave taken should ideally be taken before the expiration of 2018 though this may not be practical.

Pursuant to section 27 of the Organisation of Working Time Act, 1997

CA-00020611-001 -

I find the Complainant’s complaint to be well founded and it is required that the Employer herein extend to the Complainant a further 5 days annual leave or a payment in lieu of same.