Complainant

Respondent

Anonymised Parties

A Customer Service Representative

A Supplies Company

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-00024838-001

04/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00024838-002

04/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00024838-003

04/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00024838-004

04/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00024838-005

04/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00024838-006

04/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00024838-007

04/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00024838-008

04/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00024838-009

04/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 8 of the Unfair Dismissals Act 1977

CA-00024838-010

04/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00024838-011

04/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00024838-012

04/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00024838-013

04/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00023427-001

20/11/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00023427-002

20/11/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00023427-003

20/11/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00023427-004

20/11/2018

The complainant began work with the respondent on June 26th 2017and had an accident at work on August 8th 2018.

She went on sick leave and did not return to work. Her employment was terminated on December 3rd 2018.

CA-00023427-001 arises as the complainant says that her statement of her Terms of Employment was defective in respect of certain detail; such as that required by SI 49/1998, an error in relation to the annual leave year, an omission regarding the National Minimum Wage Act, and other detail which was specified at the hearing.

CA-00023427-002 and 003 concerned the failure to pay the public holiday premium on the day of the public holiday itself.

CA-00023427-004 relates to an act of penalisation. The complainant had an accident at work and she was threated with the termination of her employment on November 19th, 2018 as a result of reporting it.

Complaints CA-00023428-001 to 009 are for payment of annual leave and pubic holidays over the Christmas and New Year period. On this point the complainant relies on Schedule 3 to the Organisation of Working Time Act which contains special provisions relating to entitlements during periods of sick leave attributable to accidents at work. These are fully considered below..

The complainant claims payment for thirty days’ notice payment as this is the requirement placed on her in her contract.

Complaints CA-00023428-011 and 012 are complaints of penalisation (although it is accepted that she cannot recover in respect of both Acts) and 013 is a complaint regarding non-payment of notice.

Complaints CA-00023428-010 under the Unfair Dismissals Act was withdrawn at the hearing.

By way of background, the respondent says that the complainant went home after her accident on August 8th 2018 and submitted a medical certificate the following day saying that she was unfit for work.

On August 16th she was reminded of the company policy on submission of medical certificates.

In due course the respondent received notice from the complainant’s solicitor advising of a personal injury claim.

On October 11th, and again on November 1st (although the second email was misdirected and a further one sent on November 13th) the respondent wrote to the complainant enquiring when she would be fit to return to work, and also asking for original copies of certificates which had until then been submitted as email attachments.

The respondent had also sought details of the nature of her injury.

On November 14th the complainant responded to say that she was not in a position to say when she would be returning and offering to attend a consultation with the company doctor.

The respondent replied to say that it could not keep her job open indefinitely and giving her seven days to respond.

There was further correspondence with her solicitor and on December 3rd her employment was terminated on the ground of incapacity and on the basis that she had not provided the information it had sought.

Regarding the specific complaints the respondent says that she did receive a statutory statement of her Terms of Employment in compliance with the Act.

Also, she was paid for all public holidays up to the date of the termination of her employment on December 3rd.

Regarding the penalisation complaints, (three in all) her employment was terminated for the reason set out above, not in response to her reporting an accident. In any event, the complainant made no complaint under the Safety, Health and Welfare Act, she merely reported the fact of the accident.

Complaints CA-00023428-001 to 009 are for payment of annual leave and public holidays over the Christmas and New Year period. At that stage the complainant’s employment had already been terminated on December 3rd and therefore no entitlement arises.

It is useful to view the above complaints under two categories.

As will be clear from the submissions above, four complaints (CA23427-001 to 004) related to the period when the complainant was still in employment, but on sick leave.

All the others relate to the period after the termination of her employment, although some further sub-division is required there also.

Although the complainant was provided with a statement of her Terms of Employment, she identified a number of defects in it which were not disputed.

There is no basis for the complainant’s submission that premium payments for a public holiday must be made on the actual day of the public holiday.

The Organisation of Working Time Act provides for a number of options (Section 21 (1)), only one of which arises on the actual day. A delay in making a premium payment is not a breach of the Act. In fact, two of the options provided for in the Section may be availed of at a later date.

The complaint under the Unfair Dismissals Act was withdrawn so the merits of that case were not considered.

The relevant provision in the Safety, Health and Welfare at Work Act 2005 prevents an employer from penalising an employee who makes a complaint under the Act in respect of health and safety issues.

Section 27(3) of the Act sets out a number of possible actions by an employee which are protected.

The respondent submitted that the complainant had made no relevant complaint under the Act and went further to dispute whether an accident had taken place.

There are two stages in a penalisation process; the making of a complaint as outlined in Section 27 (3) and then the act of retaliation by an employer for having done so. There must be a causal connection between the two.

In Margaret Bailey t/a Finesse Beauty Salon v Farrell HSD 104 (11 August 2010) the Labour Court found that liability will only be imposed in very limited and circumscribed circumstances and that the 2005 Act;

‘only applies where an employer penalises or threatens penalisation against an employee for making a complaint or representation to their employer as regards any matter relating to safety, health and welfare at work. Penalisation for any other reasons does not come within the scope of the Act.’

In “Employment Law’, Eds Murphy, Regan, 2nd Edition, para 5.54

Judged by these criteria, neither party meets the qualifying standard; there is no evidence of a relevant complaint by the complainant in the first place and no causal link to the dismissal.

Turning to the second batch of complaints, initially complaints CA-00023428-001 to 009 which relate to leave, the complainant relied on an interpretation of Schedule 3 of the Organisation of Working Time Act.

The complainant submitted that Schedule 3 of the Act has a bearing on Section 21(5) of the main Act.

Schedule 3 identifies the following, four categories of absence as being relevant for the purposes of Section 21 (5);

1.       An absence of fifty-two weeks when an employee has been on sick leave due to an occupational accident,

2.       Twenty-six weeks where the sickness is attributable to another cause,

3.       Thirteen weeks when the employee has been off due to an authorised absence such as a lay off, and

4.       As 3 above for an industrial dispute.

Section 21(5) states that sub section (1) (the section specifying the options for taking a public holiday viz a paid day off on the day, or within a month, an additional day of annual leave, or an additional day’s pay).

‘shall not apply, as respects a particular public holiday, to an employee who is, other than on the commencement of this section, absent from work immediately before that public holiday in any of the cases specified in the third schedule.’

As I read and interpret this provision, the interaction of s. 21 with the third schedule means that the ordinary rule that an employee who is on sick leave/absent is entitled to the public holiday entitlement as per s.21 is displaced. In other words, if the sick leave exceeds the limits in the schedule or the employee is absent for more than 13 weeks for reasons authorised by employer such as a lay off or is on strike, no entitlement to public holiday entitlements arise.

However, all of the Complaints CA-00023428-001 to 009 relate to public holidays which occurred after the termination of the complainant’s employment, but within six months of the date of her accident and the commencement of her sick leave. (In her submission the complainant said that her employment ended both on December 3rd and also on December 30th, but the respondent stated that the termination was on the former date; December 3rd. I accept this as the date on which the employment ended.

If the complainant is arguing that entitlements persist in respect even of public holidays falling after the termination of employment, then that is quite another and it cannot be upheld.

Complaints CA-00023428-011 and 012 are complaints of penalisation (although it was accepted by the complainant that she cannot recover in respect of both Acts). It was not made clear how CA-00023428-011 differs from CA-00023427-004 above; both are made under the Safety, Health and Welfare at Work Act.

Regarding the other penalisation complaint CA-00023428-012 which was made under the Organisation of Working Time Act, I refer to the principles set out in my consideration of this above and note again that by reference to the criteria set out there, the qualifying criteria is not met by either party; there is no evidence of a relevant complaint by the complainant in the first place and no causal link to the dismissal in the respondent’s actions.

CA-00023428-013 is a complaint regarding non-payment of notice. The complainant is entitled to payment of statutory notice.

Complaint CA-00023428-010 under the Unfair Dismissals Act was withdrawn at the hearing.

I uphold complaint CA-00023427-001 and award the complainant €550.00

None of the complaints numbered CA-00023427-002, 003 or 004 are upheld and are dismissed.

None of the complaints numbered CA-00023428-001 to 009 inclusive, and 011 and 012 are upheld and all are dismissed.

Complaint CA-00023428-013 is upheld and the complainant is awarded one week’s pay in respect of her entitlement to notice.

Complaint CA-00023428-010 under the Unfair Dismissals Act was withdrawn at the hearing.

Sick leave, entitlement to leave,