Complainant

Respondent

Anonymised Parties

A clerical officer

An educational board.

Representatives

self

Niamh Ní Cheallaigh, Ibec

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-00024207-001

17/12/2018

The Complainant commenced employment with the Respondent on 9th June 2004 and was employed as a clerical officer working 22.5 hours per week. She earned €37,28 [ €23,309 pro rata] per annum and worked in the Respondent’s Human Resources Department.

The Complainant left this employment on 31st July 2018, this complaint was received by the Workplace Relations Commission on 17th December 2018.

The Complainant worked as a Clerical Officer in the HR Department of the Respondent for 14 years.

During the summer she contracted an infection whilst in hospital with her 6-year-old Son who had septicaemia, a bone infection and septic arthritis.

The Complainant ended up being out of work long term and on medication for an infection and was suffering with stress and anxiety attacks. Her GP placed her on certified sick leave from 22nd May 2018 to 31st July 2018 (her date of resignation).

The Complainant had previously applied to take leave in mid-July, to be a mixture of annual leave (8.5 days) and the balance of days as flexi leave to travel abroad. Her GP advised her it would benefit the family to go.

This leave had been approved in advance by a Grade 6 Senior Staff Officer in the HR Department based on the approval of her Line Manager. In a telephone conversation in June 2018 with her Line Manager, she was asked about her trip abroad and asked, “Do you want to use your annual leave”? to which she replied “No, my GP has extended my Cert. so I will post it to you today”.

When the Line Manager received the GP Certificate, she emailed the Complainant on 25th June 2018 to confirm that she had received her cert and would fix up the clock and then the Complainant

received another email informing her she had been given back her annual leave.

However, when she was abroad, on the 26th July 2018 she logged into the portal and noticed her certified sick leave had since been rejected on the system and had been recorded as annual leave.

The Complainant emailed her colleagues in HR who stated that the HR Manager said

'technically you can’t go from Sick Leave to Annual Leave' but because I already had it booked as Annual Leave she requested my colleague to change it back from Certified Sick Leave to Annual Leave (without informing her).

The HR Manager had also made her colleague in HR change days where she had flexi days requested to Annual Leave and said my last working day of 30th July to be applied as Annual Leave also.

The Complainant’s reasons for making this complaint to the WRC are as follows:

1.       An employee of the Respondent cannot take sick leave immediately before or after annual leave

2.       I was on continuous certified sick leave from 22nd May 2018 to 31st July 2018 3.

3.       I informed Management in line with policy in advance that I would remain on certified sick leave (as per my telephone conversation with my Line Manager).

4.       I was forced to take Annual Leave for days there were not initially planned as Annual

Leave (flexi days). Having spoken to Citizens Information, I believe this to be illegal.

Since January 2018, to the Complainant’s date of resignation, she had accrued a balance of 11 days Annual Leave that had not been taken and expected to be paid these at her date of resignation. It was difficult to take Annual Leave in advance of becoming ill as the HR Manager told her that her Line Manager had been promoted and her backfill promotion was given to a different department, so the Complainant had to look after the day to day running of the Pension Section and train in 2 new members of staff (as a Part Time Grade 3 Clerical Officer).

The Complainant visited the office in person on 28th June, the day after emailing the HR Manager her letter of resignation to give her a hard copy of her letter. The HR Manager was not in the office that day, but the Complainant spoke to all members of the HR Team who were aware of her intentions to travel abroad.

The reason provided to the Complainant for not paying her for 11 days annual leave was that she had not 'put it in writing' to her to ask could she travel abroad. The Complainant informed the HR Manager that the Respondent’s policy (the most recent Version 1.8 July 2013) does not state that a request must be made in writing, the Complainant believes she adhered to the Policy by informing management in advance that she was to remain on sick leave.

The Complainant feels quite stressed by the entire process and further feels that she has followed procedure and is now being ignored.

Background to the Claim.

1.       In January 2018 the Complainant booked annual leave for July 2018.

2.       The Complainant went on certified sick leave from 22nd May 2018 until her employment end date of 31st July 2018. Having provided her sick certificates to the Respondent, the Complainant took it that the previously booked annual leave would be amended to reflect sick leave. This would normally be the case, however, in this instance, the Complainant was travelling abroad during this period of sick leave which is treated differently.

3.       Circular 63 of 2015 titled “Revised Sick Leave Arrangements for all staff in Education and Training Boards other than Teachers and Special Needs Assistants” sets out at point 1.4 that “The approval of the employer must be sought prior to an employee travelling abroad while on sick leave”.

4.       The Complainant sought approval from her Line Manager to travel abroad, however this manager did not have the authority to approve such a request. The policy and practice for making such a request is that the request to travel abroad whilst on sick leave must be made in writing, in advance of travel to the Head of HR, a Director or the CEO of the Respondent organisation. This practice dates back a number of years, applies to all teaching and non-teaching staff, a fact that the Complainant is more that aware given her length of service in the HR Department and the fact that as part of her job she was expected to and did explain the impact of the Circular to employees who made enquiries.

5.       The Complainant did not follow the above policy and procedure and therefore the absence was not amended from annual leave to sick leave.

Respondent Position.

1.       The Respondent acted in accordance with Circular 63 of 2015 which is a direction from the Minister of Education and Skills and sets out that “The approval of the employer must be sought prior to an employee travelling abroad while on sick leave”. In this instance the Complainant did not follow the correct procedure, a procedure she is fully aware of, in seeking the necessary approval.

2.       It is the Respondent’s position, therefore, that they could not transfer the Complainant from annual leave to sick leave as doing so would not only have implications on the adoption of the procedure in the Respondent organisation going forward but would also be in clear defiance of instructions from the Minister for Education and Skills.

The facts of the complaint up to July 2018 are not in dispute.

Section 19 (2) of the Organisation of Working Time Act, 1997, reads as follows:

(2)” A day which would be regarded as a day of annual leave shall, if the employee concerned is ill on that day and furnishes to his or her employer a certificate of a registered medical practitioner in respect of his or her illness, not be regarded, for the purposes of this Act, as a day of annual leave”.

Simply put it is not possible to be sick and on annual leave at the same time.

I note that the Respondent refers to Circular 63 of 2015 titled “Revised Sick Leave Arrangements for all staff in Education and Training Boards other than Teachers and Special Needs Assistants” sets out at point 1.4 that “The approval of the employer must be sought prior to an employee travelling abroad while on sick leave”.

The Respondent has attempted to comply with this Circular after the fact and in making such an attempt have breached the Organisation of Working Time, this quite simply is not acceptable.

Section 27 (2) and (3) read as follows:

(2) An employee or any trade union of which the employee is a member, with the consent of the employee, may present a complaint to a rights commissioner that an employee’s employer has contravened a relevant provision in relation to the employee and, if the employee or such trade union does so, the commissioner shall give the parties an opportunity to be heard by the commissioner and to present to the commissioner any evidence relevant to the complaint, shall give a decision in writing in relation to it and shall communicate the decision to the parties.

(3) A decision of a rights commissioner under subsection (2) shall do one or more of the following:

(a) declare that the complaint was, or as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require that the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the employee’s employment, and the references in the foregoing paragraphs to an employer shall be construed, in a case where ownership of the business of the employer changes after the contravention to which the complaint relates occurred, as references to the person who, by virtue of the change, becomes entitled to such ownership.

I now find that the complaint is well founded.

The Respondent is ordered to pay the Complainant for her 11 days of sick leave.

No employee should have to pursue a complaint for a basic employment right to the Workplace Relations Commission. In addition to her 11 days pay I order the Respondent to pay compensation to the Complainant in the sum of €1,000.

Payments should be made within 42 days from the date of this decision.

Organisation of Working Time Act. Illness during annual leave.