FULL RECOMMENDATION
SECTION 28 (1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : COMPLETE LAB SOLUTIONS SAOTHARLANN CHONAMARA TEO (REPRESENTED BY ALASTAIR PURDY & CO. SOLICITORS) - AND - ROISIN UI MHAOILCHIARAIN (REPRESENTED BY MS LORRAINE LALLY, B.L.) DIVISION : Chairman: Ms O'Donnell Employer Member: Ms Connolly Worker Member: Mr McCarthy |
1. An appeal of an Adjudication Officer's Decision No. ADJ-00009003.
BACKGROUND:
2. The Respondent appealed the Decision of an Adjudication Officer to the Labour Court on the 21 March 2019 in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 28 May 2019. The following is the Decision of the Court.
DETERMINATION:
This is an appeal by Complete Lab Solutions Saotharlann Chonamara Teo (the Respondent) against the decision of an Adjudication Officer in a complaint by Roisin Ui Mhaoilchiarain (the Complainant) pursuant to s.41 of the Workplace Relations Act 2015. The complaint relates to an alleged contravention of the Organisation of Working Time Act 1997 (the Act).
The Adjudication Officer held that the Complainant was entitled to 13 days annual leave for the leave year in question.
In line with the normal practice of the Court, the parties are referred to in this Determination as they were at first instance. Hence, Ms Roisin Ui Mhaoilchiarain is referred to as the Complainant and Complete Labs Solutions Saotharlann Chonamara Teo is referred to as the Respondent.
Background
The Complainant is employed by the Respondent and has been absent on sick leave since 30thAugust 2016. The Complainant presented a complaint to the Workplace Relations Commission alleging that the respondent had contravened the Act in relation to her entitlement to accrue annual leave while on sick leave.
Complainant’s case
It is the Complainant’s case that she is entitled to accrue annual leave while she is on sick leave and that the Respondent failed to pay the required annual leave days and holiday pay during the 2016 leave year.
Respondent’s case.
The Complainant is still employed by the Respondent and therefore cannot claim payment for annual leave under section 23 (1) of the Act. The Complainant is still out on sick leave and therefore is not in a position to take the annual leave that accrued during 2016 in accordance with section 20(1) ( c) of the Act. The Respondent has at all times operated in accordance with the requirements of the Act
Discussion
It was accepted by the Representative for the Complainant that as the Complainant is still an employee of the Respondent that no claim can arise under section 23(1) of the Act. It was further accepted that as the Complainant is still on sick leave she is not in a position to exercise her entitlements under section 20 (1) (c) of the Act.
The Complainant could not identify any breach of the Act during the relevant period and therefore the claim must fail.
The Court determines that the Appeal is upheld.
The decision of the Adjudication Officer is overturned.
The Court so determines.
Signed on behalf of the Labour Court
Louise O'Donnell
CR______________________
7 June, 2019Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.