Complainant

Respondent

Anonymised Parties

A Childcare Worker

A Montessori

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00021173-001

15/08/2018

The complainant outlined that she worked for the respondent, a Montesorri. She started as a childcare assistant on 14th September 2015. Her gross weekly pay was €303. She went on maternity leave in September 2016 for six months. From March 2017, the complainant was on sick leave and in receipt of Illness Benefit. This was not related to an occupational injury and was post-natal depression. The complainant was told by a colleague that the crèche would close on the 29th June 2018. She contacted the respondent, who confirmed this. The complainant outlined that she was owed six weeks of annual leave and public holidays. She had not taken annual leave or public holidays since September 2016. The complainant also referred to payment for annual leave and public holidays in her complaint form.

The respondent outlined that she received a letter from the Department of Social Protection to say that the complainant was going on Illness Benefit. As the complainant was out for so long, it was an oversight not to contact her when the crèche was closing. The crèche closed on the 29th June 2018. While others were paid their redundancy, the respondent did not have the funds for the complainant. The respondent was not able to pay the complainant for annual leave and public holidays.

As the issues of redundancy, annual leave and public holidays were addressed in the complaint form, findings are made in respect of each element.

It is clear that the complainant was made redundant on the 29th June 2018, when the crèche closed. The complainant remained an employee at the time the facility closed. Her employment commenced on the 14th September 2015. The period of maternity leave counts as reckonable service for the purposes of calculating the redundancy lump sum. Given that the subsequent illness was not related to an occupational injury, the first 26 weeks of the complainant’s illness-related absence count as reckonable service (see Schedule 3, R 8 of the Redundancy Payments Act, 1967).

The complaint was lodged on the 15th August 2018. The complainant continued to accrue annual leave while on sick leave. She is also entitled to the annual leave accrued during the maternity leave. The statutory leave year runs from the 1st April to the 31st March the following year. I calculate that the complainant accrued an entitlement to one week’s annual leave in the 2018-19 leave year (i.e. up to the 29th June 2018). She is entitled to redress of €303. The complainant is entitled to recover 20 days of annual leave for the 2017-18 statutory leave year, an amount of €1,212. The 2016-17 leave year ended on the 31st March 2017 and given the complaint was lodged on the 15th August 2018, no award can be made for this period.

An employee is entitled to recover for public holidays for the period of six months predating a complaint, extendable with reasonable cause to 12 months. As the complainant was on sick leave from March 2017, she was entitled to be paid for public holidays for 26 weeks after the commencement of her sick leave (Schedule 3 of the Organisation of Working Time Act applies). This ended on the 22nd September 2017, at the latest. There are, therefore, no public holidays within the six-month limitation period and I cannot award redress in this regard.

I find that the complaint pursuant to the Redundancy Payments Act is well-founded and the complainant is entitled to a redundancy lump sum payment according to the following criteria:

Date the employment started: 14th September 2015

Date of sick leave: 31st March 2017 to the 29th June 2018 (of which the first 26 weeks are reckonable service)

Date the employment ended: 29th June 2018

Average gross weekly earnings: €303

This award is made subject to the complainant having been in insurable employment under the Social Welfare Acts during the respective period of employment.  

I find that the complainant is entitled to recover €1,515 pursuant to the Organisation of Working Time Act.

Redundancy Payments Act

Reckonable Service / Sick Leave / Non-occupational injury

Organisation of Working Time Act / Sick leave