Complainant

Respondent

Anonymised Parties

Legal Executive

Solicitor

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-00027240-001

23/03/2019

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

CA-00027241-001

23/03/2019

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

CA-00027241-002

23/03/2019

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

CA-00027811-001

16/04/2019

The Complainant is seeking adjudication by the Workplace Relations Commission under Section 27 of the Organisation of Working Time Act, 1997  (CA-00027241-001) wherein it is alleged that the Complainant did not receive her paid holiday/annual leave entitlements.

The Complainant is seeking adjudication by the Workplace Relations Commission under Section 27 of the Organisation of Working Time Act, 1997  (CA-00027241-002) wherein it is alleged that the Complainant did not receive her public holiday entitlements.

The Complainant is seeking adjudication by the Workplace Relations Commission under Section 6 of the Payment of Wages Act, 1991  (CA-00027811-001) wherein it is alleged that the Complainant was not paid the amounts due and owing to her.

The Complainant withdrew Complaint CA-00027240-001. 

The Complainant commenced employment with the Respondent on or about 19th June

2007 as a legal executive/office manager. The Complainant worked 30 hours per week and had a gross salary of €608.82 with a net salary of €500 per week but never received any payslips.

The Complainant was  on certified sick leave from on or about the 27 July 2016 and resigned as per the letter of resignation on the 7^th January 2019 and her last day of employment was the 4^th February 2019.

The Complainant was not furnished with a written contract of employment, but, was subsequently sent a contract of employment on the 23 February 2017 while she was on sick leave, but did not sign, as the terms and conditions did not adequately reflect her working practices.

The Complainants submits that she is entitled to annual leave entitlements whilst on certified sick leave. Accordingly, the relevant periods are from the 1^st April 2016 to the 31^st March 2017, 1^st April 2017 to the 31^st March 2018 and from the 1st April 2018 to 4th February 2019.

The Complainant submits that she is entitled to €4,505.12, in respect of this claim,

based on 37  accrued days in total being  20 accrued days for 2017 & 2018  and 17 accrued days for 2018 & 2019 at  at €121.76 per day.

In this regard the Complainant relies upon  s.19, s.20 and s. 23(1) of the Organisation of Working Time Act 1997 as amended by s.86 of the Workplace Relations Act 2015 provide for the accrual of

annual leave whilst an employee is absent on certified sick leave and for pay for accrued

annual leave on cessation of employment.

The Complainant submits that pursuant to Section 21 of the Organisation of Working Time Act 1997, she is entitled to pay in respect of  Good Friday 14 April 2017, May Day 1 May 2017, June Bank Holiday 5 June 2017, August Bank Holiday 7 August 2017, Halloween 30 October 2017,

Christmas Day 25 December 2017, Stephens Day 26 December 2017, New Year’s Day 1 January 2018 St Patrick’s Day 17 March 2018. The Complainant submits that she is entitled to €1,098.84 for 9 days.

The Complainant submits that in order to clear up all outstanding matters in contemplation of resignation , the Complainant requested outstanding payments due for outside working hours prison visits which it is alleged the Respondent had agreed to pay for prior to the Complainants certified sick leave commenced.  The Complainant submits she is entitled to payment of €921.50 for 19 visits from January 2015 to July 2015.

The Complainant further submits that the Respondent has failed to maintain the appropriate statutory records pertaining to the employment of the Complainant and accordingly this failure cannot be taking advantage of in order to frustrate the nature of the Complainants contention.

The Complainant submitted that she has endeavoured to resolve the aforementioned outstanding matters with the Respondent without success  and accordingly felt she has no option but to refer these matters to the Workplace Relations Commission.

The first three complaints were received by the Workplace Relations Commission  on the 23^rd March 2019  and the fourth complaint on the  16^th April 2019.

The Respondent accepts the timeline in relation to the Complainants employment and her ultimate resignation as of the 7^th January 2019.

The Respondent maintained throughout the course of the hearing and in correspondence that no monies are due and owing to the Complainant.

Following a meeting between the parties on the 8^th November 2018, the Complainant  emailed the Respondent on the 5^th December 2018 seeking, inter alia, access to the 2015/2016 diaries and prison visit slips in order to calculate out of hours prison visits and expenses owed. The Complainant stated that she echoes the Respondents sentiment that in order to avoid any unpleasant parting of ways, outstanding matters should be dealt with speedily and in a cooperative manner. The Respondent replied that this matter has been finalised, no expenses are  owed, the diaries have been disposed off and stated that for the avoidance of all doubt there is nothing due and owing.

The Complainant sent an email on the 10^th December 2019 to the Respondent stating, inter alia, that she maybe able to calculate her expenses from the prison visit slips or, if they were not available,  would be willing to discuss payment based on previous years expenses. Further, the Complainant stated that considering the good working relationship they enjoyed she was surprised at the Respondents unwillingness to at least make some effort to end their working relationship with some dignity and in a spirit of cooperation. The Respondent replied, on the 11^th December 2018, that for the avoidance of all doubt there is no remuneration due and owing to the Complainant and accordingly considers this matter closed.  Further, the Respondent stated that as a busy office, they don’t have time to devote any further attention to these random queries and look forward to the Respondents letter of resignation in due course.

The Complainant responded on the 17^th December 2018 and attached an email from the Respondents Accountant & Taxation Consultants in relation to wages and expenses (dated the 1^st September 2015). The Complainant stated that the payment for out of hours prison visits remain outstanding from January 2015 plus expenses incurred for all prison visits that took place during her working hours plus subsistence for court attendances. The Respondent replied on the 17^th December 2019 and noted the contents of the aforementioned attached email from the Respondents Accountant & Taxation Consultants and the selective reading of same. Further, the Respondent reiterated that for the avoidance of doubt there is nothing due and owing to the Complainant.

The Respondent acknowledged the Complainants letter of resignation dated the 7^th January 2019  on the 12^th February 2019 and further confirmed that there are no monies due and owing to the Complainant.

The Respondent indicated that the Complainants net salary had been increased from €500.00 to €650.00 per week.  Ultimately, the Respondent indicated there was no real prospect of the Complainant returning to work, following a long period of certified sick leave, and it was necessary for him to employ other personnel.

The Respondent denied all aspects of the complaints.     

In the circumstances of this matter, I have carefully listened to the evidence tendered in the course of this hearing by both parties. In particular it is noted that  for the most part, the parties in this matter had a very close working relationship however unhappy differences arose in the course of the Complainants employment.

In relation to the issue of accured leave and compensation for same. Sections 19, 20 and  23(1) of the Organisation of Working Time Act 1997 as amended by s.86 of the Workplace Relations Act 2015 provide for the accrual of annual leave whilst an employee is absent on certified sick leave and for pay for accrued annual leave on cessation of employment.

Section 19

(a) in section 19, by the insertion of the following subsection:

“(1A) For the purposes of this section, a day that an employee was absent from work

due to illness shall, if the employee provided to his or her employer a

certificate of a registered medical practitioner in respect of that illness, be

deemed to be a day on which the employee was—

(a) at his or her place of work or at his or her employer’s disposal, and

(b) carrying on or performing the activities or duties of his or her work.”,

Section 20

Section 20(1)(c) amended as follows:-

86(1)(b) in section 20, by the substitution of the following paragraph for paragraph (c) of

subsection (1):

“(c) to the leave being granted—

(i) within the leave year to which it relates,

(ii) with the consent of the employee, within the period of 6 months after the

end of that leave year, or

(iii) where the employee—

(I) is, due to illness, unable to take all or any part of his or her annual leave

during that leave year or the period specified in subparagraph (ii), and

(II) has provided a certificate of a registered medical practitioner in respect of

that illness to his or her employer,

within the period of 15 months after the end of the leave year.”

Section 23

(a) in section 23, by the substitution of the following subsection for subsection (1):

“(1) (a) Where—

(i) an employee ceases to be employed, and

(ii) the whole or any portion of the annual leave in respect of the relevant period

remains to be granted to the employee,

the employee shall, as compensation for the loss of that annual leave, be paid by his or her

employer an amount equal to the pay, calculated at the normal weekly rate or, as the

case may be, at a rate proportionate to the normal weekly rate, that he or she would

have received had he or she been granted that annual leave.

(b) In this subsection—

‘relevant period’ means—

(i) in relation to a cessation of employment of an employee to whom

subparagraph (i) of paragraph (c) of subsection (1) of section 20 applies, the

current leave year,

(ii) in relation to a cessation of employment of an employee to whom

subparagraph (ii) of the said paragraph (c) applies, that occurs during the first

6 months of the current leave year—

(I) the current leave year, and

(II) the leave year immediately preceding the current leave year,

or

iv) in relation to a cessation of employment of an employee to whom subparagraph (iii) of

the said paragraph (c) applies that occurs during the final 3 months of the period of

15 months referred to in the said subparagraph (iii) —

(I) the current leave year, and

(II) the 2 leave years immediately preceding the current leave year.”

The Complainant submitted that she fulfils the requirements set out in s.19, s.20 and s.23, as amended by s.86  and she is  accordingly entitled to pay in respect of accrued annual leave. The Complainant accepts she has lost her entitlement for the year 2016-2017 as it is outside the 15 month period.

The Complainant is claiming  20 accrued days for 2017 and 2018 to the amount of €2,453.28.

However, Section 23 provides “..applies that occurs during the final 3 months of the period of 15 months.” The Complainants last day of employment was the 4^th February 2019 and the 15 month period from the 31^st March 2018 ended on the 30^th June 2019. The  Complainants cessation of employment occurred before the final 3 month period and accordingly she does not have an entitlement for compensation for accrued leave for this period of time.

However, the Complainant is entitled to compensation for the 17 days accrued from the 1^st April 2018 to the 4^th February 2019 to the amount of €2,069.92

In relation to the Complainants submission that she is entitled to payment for the aforementioned   9 public holidays.

Section 21 of the Organisation of Working Time Act 1997 provides as follows:

1. — (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:

Provided that if the day on which the public holiday falls is a day on which the employee

would, apart from this subsection, be entitled to a paid day off this subsection shall have

effect as if paragraph (a) were omitted therefrom.

(2) An employee may, not later than 21 days before the public holiday concerned, request

his or her employer to make, as respects the employee, a determination under subsection

(1) in relation to a particular public holiday and notify the employee of that determination at

least 14 days before that holiday.

(3) If an employer fails to comply with a request under subsection (2), he or she shall be

deemed to have determined that the entitlement of the employee concerned under

subsection (1) shall be to a paid day off on the public holiday concerned or, in a case to

which the proviso to subsection (1) applies, to an additional day’s pay.

(4) Subsection (1) shall not apply, as respects a particular public holiday, to an employee

(not being an employee who is a whole-time employee) unless he or she has worked for the

employer concerned at least 40 hours during the period of 5 weeks ending on the day before

that public holiday.

(5) Subsection (1) 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.

(6) For the avoidance of doubt, the reference in the proviso to subsection (1) to a day on

which the employee is entitled to a paid day off includes a reference to any day on which he

or she is not required to work, the pay to which he or she is entitled in respect of a week or

other period being regarded, for this purpose, as receivable by him or her in respect of the

day or days in that period on which he or she is not required to work as well as the day or

days in that period on which he or she is required to work.

THIRD SCHEDULE

Entitlement under section 21 in respect of Public Holidays: Exceptions

Each of the following are the cases mentioned in section 21 (5) of absence by the employee

concerned from work immediately before the relevant public holiday:

1. such an absence, in excess of 52 consecutive weeks, by reason of an injury sustained by

the employee in an occupational accident (within the meaning of Chapter 10 of Part II of the

Social Welfare (Consolidation) Act, 1993 ),

2. such an absence, in excess of 26 consecutive weeks, by reason of an injury sustained by

the employee in any accident (not being an accident referred to in paragraph 1 ) or by reason

of any disease from which the employee suffers or suffered,

3. such an absence, in excess of 13 consecutive weeks, caused by any reason not referred to

in paragraph 1 or 2 but being an absence authorised by the employer, including a lay-off,

4. such an absence by reason of a strike in the business or industry in which the employee is

employed.

The Complainant went on certified sick leave on or about the 27^th July 2016. The certified sick leave was  not by reason of an occupational accident so therefore  relying on Section 2 of the Third Schedule above, the period of time would continue until  on or about the 27^th January 2017. Further,  considering this  complaint was received by the Workplace Relations Commission on the 23^rd March 2019 this particular complaint is outside the requisite time period for making such a complaint and therefore fails.

Under the Payment of Wages Act, 1991 the Complainant submits she is entitled to  payment of €921.50 for 19  prison visits from January 2015 to July 2015. Upon considering the evidence and the exchange of emails between the parties and with the exception of an email stating there were 19 prison visits from January to July 2015 there is no credible evidence that can be relied upon to confirm said visits occurred. Further, considering this complaint was received by the Workplace Relations Commission on the 16^th April 2019, this particular complaint is outside the requisite time period for making such a complaint and therefore fails.

I find that the Complaint (CA-00027241-001) made pursuant to the Organisation of Working Time Act, 1997 is well founded and order the Respondent to pay the Complainant €2,069.92.

I find that the Complaint (CA-00027241-002)   made pursuant to the Organisation of Working Time Act, 1997 is not well founded and therefore fails

find that the Complaint (CA-00027811-001)   made pursuant to the Payment of Wages Act, 1991 is not well founded and therefore fails