ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00017139
Complaint(s):
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-00022228-001 | 28/09/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00022228-002 | 28/09/2018 |
Date of Adjudication Hearing: 26/11/2018
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or complaints. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered.
In particular, the Complainant herein has referred one complaint:
The Complaint herein relates to a contravention of The Organisation of Working Time Act 1997 and in particular to a contravention under Section 19 of the Act which sets out those circumstances which give rise to annual leave entitlements. So that an Employee becomes entitled to Annual leave equal to:
4 weeks in a leave year in which the Employee has worked 1365 hours or more;
Section 86(1) of the Workplace Relations Act of 2015 amended Section 19 of the OWT Act (Section 1A) and provides that where an employee is absent from work by reason of certified illness then Annual leave continues to accrue as if the Employee was at the place of work and at the Employer’s disposal
Section 20 of the OWT Act has been amended to ensure that leave should ordinarily be granted within the leave year to which it relates (this can extended to a further six month period after the end of the leave year where the employee has so consented).
Where an Employee has been ill and unable to take annual leave by reason of the certified illness during the leave year or the six months thereafter then the leave can be taken within the 15 month period after the end of the leave year (Section (20)(1)(c) of the OWT Act)
The Adjudication Officer must be aware of applicable time limits and in this regard, the Workplace Relations Act specifies at Section 41 (6) that (subject to s.s.8) an Adjudication Officer shall not entertain a complaint referred to said Adjudication Officer after the expiration of the period of six months beginning on the date of the contravention to which the Complaint relates.
Section 41 (8) specifies that the Adjudication Officer may entertain a Complaint or dispute to which section 41 applies after the expiration of the six month period referred to in ss. (6) and (7) – though not later than a further six months after the initial expiration as the case may be - if the Adjudication Officer is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.
Background:
The Complainant was working as a Security Officer with the Respondent Officer since 2011. At the beginning of January 2016, the Complainant went out of work on certified sick leave arising out of an accident. The Complainant remained out of work for two years until January 2018. |
Summary of Complainant’s Case:
The Complainant was represented and a written Submission was provided and opened to me. The Complainant is looking for his accrued Annual Leave entitlements for the year 2016. He says that by operation of the law, he is entitled to be recompensed for 20 days Annual leave for the leave year of 2016. Section 20 of the Organisation of Working Time Act (as amended by the Workplace Relations Act) has been amended to allow an employee out on certified illness to carry over that annual leave for a period of up to 15 months after the end of that leave year. The Complainant says that his entitlement to carry over his 2016 Annual Leave entitlements operated until the end of March 2018 (i.e. fifteen months after the end of the 2016 leave year). The Complainant (who had been looking for these 2016 Leave entitlements on his return to work in January 2018 through to March 2018) caused a Workplace Relations Complaint Form to issue in September of 2018 and within six months of the accrual of his 2016 Annual Leave entitlements.
|
Summary of Respondent’s Case:
The Respondent was represented by it’s own HR Business Partner. The Respondent provided me with a written submission which was opened to me. In short the Respondent (who was dealing with many issues with this particular Employee on his return to the workplace after a period of illness) made the case that the Annual Leave entitlement was lost to the Complainant at the end of March 2018. |
Findings and Conclusions:
I have carefully considered the evidence adduced by the parties herein. I am satisfied that the Complainant is entitled to bring his claim within six months of the accrual date in March of 2018. The fact that the Complainant was anxious about his Annual Leave entitlements for 2016 was repeatedly made known to the Employer form the start of 2018 up to March of 2018 and beyond. I accept that this specific issue might have been overlooked in circumstances where the Employer was trying to accommodate the Complainant’s return to the workplace and make other relevant payments. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Pursuant to Section 27 of the Organisation of Working Time Act 1997 (as amended), a decision of an adjudication officer as provided for under Section 41 of the Workplace Relations Act shall do one or more of the following:
(i) Declare the complaint was or was not well founded; (ii) Require the Employer to comply with the relevant provision; (iii) Require the employer to pay to the employee compensation of such amount as is just and equitable having regard to all the circumstances but not exceeding 2 years remuneration. Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 - CA-00022228-001 – I am satisfied that the Complaint herein was well-founded and I require the Employer to pay to the Employee the sum of €1,500.00 compensation. Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 - CA-00022228-002 - This amounts to a repetition of the claim and is not well-founded. |
Dated: 11/01/2019
Workplace Relations Commission Adjudication Officer: Penelope McGrath