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-00026018-001

04/02/2019

The complainant has been employed by the respondent since 29th February 2016. The complaint relates to alleged breaches of the Organisation of Working Time Act, 1997 in relation to Annual Leave and Public Holiday entitlements.

The complainant was on Maternity Leave from December 2017 until October 2018. The complainant then began a period of sick leave and remains on sick leave to date.

The complaint was submitted to the Workplace Relations Commission (WRC) on 4th February 2019. The cognisable period of the complaint is therefore, 5th August 2018 to 4th February 2019.

The complainant contends that while on Maternity Leave from December 2017 to October 2018, she accrued the entitlement to a full year’s annual leave on the basis of attaining the equivalent of working 1365 hours in that period. The complainant also contends that there are outstanding Public Holiday entitlements due to her which the complainant wants to be paid for.

The respondent accepts the complainant’s entitlements. The respondent stated that annual leave and public holiday entitlements up until October 2018 were accrued while the complainant was on Maternity Leave and payments were discharged to her up to that point. The respondent contends that subsequent annual leave and public holiday entitlements were accrued while the complainant was on sick leave. On that basis, the respondent stated that it is not in a position to discharge entitlements that were accrued on sick leave, until the complainant returns to work.

The cognisable period of this complaint is from 5th August 2018 to 4th February 2019.

Public Holidays

In relation to Public Holiday entitlements, there were 5 public holidays within the cognisable period of this complaint, Monday 6th August 2018, Monday 29th October 2018, Tuesday 25th December 2018, Wednesday 26th December 2018 and Tuesday 1st January 2019.

It appears that Public Holiday entitlements in relation to 25th, 26th December 2018 and 1st January 2019 were not provided to the complainant as she was on sick leave for these Public Holidays.

The Applicable Law

Section 21 of the Organisation of Working Time Act, 1997 provides as follows in relation to Public Holiday entitlements.

21(1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—

(a) a paid day off on that day,

(b) a paid day off within a month of that day,

(c) an additional day of annual leave,

(d) an additional day’s pay:

The Public Holiday entitlements that have accrued to the complainant are subject to the provisions of Section 21(1) of the Organisation of Working Time Act, 1997. The complainant has been on sick leave since November 2018. The complainant has sought payment for the Public Holidays as they arise, however the legislation provides that the employer may determine its preferred benefit in respect of Public Holidays. The respondent has stated that it cannot discharge public holiday entitlements to the complainant while she is on sick leave. In those circumstances, I accept the respondent’s position that it will comply with the provisions of the legislation and provide public holiday benefit when the complainant returns to work.

Annual Leave

The complainant asserts that she is entitled to be paid for the annual leave that accrued during her period of Maternity Leave from December 2017 until October 2018. The complainant stated that she is entitled to be paid for a full year of annual leave entitlements in compliance with Section 19(1)(a) of the Organisation of Working Time Act, 1997.

The Applicable Law

Section 19(1) of the Organisation of Working Time Act, 1997 provides as follows:

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.

In reaching a conclusion on this issue, I refer to the Labour Court Determination of Waterford City Council v O’Donoghue DWT0963 wherein the Court stated as follows:

“the term “leave year” is defined by s.2 of the Act as meaning “a year beginning on any 1st day of April”. However, it should be noted that this definition refers to a “year”. As a matter of plain language that means a period of 12 months”.

Based on the cognisable period of this complaint, it is only the annual leave year of 1st April 2018 to 31st March 2019 that is considered in this decision. The complainant was on Maternity Leave between the months of April 2018 and October 2018 and was absent on Sick Leave thereafter. It follows that the complainant’s annual leave for “the leave year” 18/19 accrued up until October 2018 while on Maternity Leave and from October 2018 to March 2019 while on Sick Leave.

Accordingly, I find that the complainant did not accrue an entitlement to an entire year’s annual leave while on Maternity Leave as claimed. In addition, as the complainant remains in the employment of the respondent the option to be paid in lieu of annual leave entitlements does not arise. On that issue I note the respondent’s position that the complainant will receive all entitlements to Annual Leave and Public Holidays on her return to work.

In all of the circumstances of this complaint, I do not find in favour of the complainant.

Having considered the submissions of both parties, I find that the complaint is not well founded.

Annual Leave entitlements, Public Holiday entitlements