ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00017947
Parties:
| Complainant | Respondent |
Anonymised Parties | Logistics Supervisor | Logistics Provider |
Representatives |
| John Connellan Solr. Carley Connellan Solrs |
Complaint:
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-00023116-001 | 08/11/2018 |
Date of Adjudication Hearing: 29/04/19 and 08/05/2019
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or complaints. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered.
In particular, the Complainant herein has referred one complaint:
The Complaint herein relates to a contravention of The Organisation of Working Time Act 1997 and in particular to a contravention under Section 19 of the Act which sets out those circumstances which give rise to annual leave entitlements. So that (in general terms) an Employee becomes entitled to Annual leave equal to:
4 weeks in a leave year in which the Employee has worked 1365 hours or more;
1/3 of a working week in each month that the Employee has worked in excess of 177 hours;
8% of the hours worked up to 4 working weeks.
Pursuant to Section 27 of the Organisation of Working Time Act 1997 (as amended), a decision of an adjudication officer as provided for under Section 41 of the Workplace Relations Act shall do one or more of the following:
- Declare the complaint was or was not well founded;
- Require the Employer to comply with the relevant provision;
- Require the employer to pay to the employee compensation of such amount as is just and equitable having regard to all the circumstances but not exceeding 2 years remuneration.
The Adjudication Officer must be aware of applicable time limits and in this regard, the Workplace Relations Act specifies at Section 41 (6) that (subject to s.s.8) an Adjudication Officer shall not entertain a complaint referred to said Adjudication Officer after the expiration of the period of six months beginning on the date of the contravention to which the Complaint relates. The Complainant herein lodged his Complaint on the 8th of November 2018.
Section 41 (8) specifies that the Adjudication Officer may entertain a Complaint or dispute to which section 41 applies after the expiration of the six month period referred to in ss. (6) and (7) – though not later than a further six months after the initial expiration as the case may be - if the Adjudication Officer is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.
Section 86(1) of the Workplace Relations Act of 2015 amended Section 19 of the OWT Act (Section 1A) and provides that where an employee is absent from work by reason of certified illness then Annual leave continues to accrue as if the Employee was at the place of work and at the Employer’s disposal.
Section 20 of the OWT Act has been amended to ensure that leave should ordinarily be granted within the leave year to which it relates (this can be extended to a further six month period after the end of the leave year where the employee has so consented).
Where an Employee has been ill and unable to take annual leave by reason of the certified illness during the leave year or the six months thereafter then the leave can be taken within the 15 month period after the end of the leave year (Section (20)(1)(c) of the OWT Act)
Background:
The Complainant herein worked with the Respondent company in a warehouse facility since 2007. In 2018 he was absent from work for an extended period. The Complainant is claiming that his Annual Leave entitlements accrued in this period. The Complainant has since left the employment. |
Summary of Complainant’s Case:
The Complainant is looking for Annual Leave entitlements accruing during a period of sick leave. |
Summary of Respondent’s Case:
The Respondent is resisting the claim for accrued Annual Leave as this was not a a recognised period of certified sick leave. |
Findings and Conclusions:
I have carefully considered the evidence adduced. The Complainant had an accident in 2017. As a result of this the Complainant required knee surgery. As such surgery is expensive in Ireland, the Complainant opted to return to his native Poland to have the surgery performed in that jurisdiction. His Employer was aware of the reason for the Complainant’s journey and agreed that it would leave his position open for his return. The Employer (through it’s representation), has asserted that the agreement reached between the parties was some sort of unpaid leave of absence and therefore should not be considered sick leave for the purposes of the Organisation of Working Time Act. It should therefore, says the Respondent, be seen as a period of time wherein annual leave cannot be allowed to accrue. The Complainant states that this was an acknowledged sick leave (and understood by his Employer as such) and his case has to be that an elective surgery cannot preclude an employee from the protection afforded by the Act. Just because something is planned does not take away from the fact that it is genuine. The Complainant further asserts that the Respondent was even supplied with up to two Medical Certs outlining the fact of surgery and the extended recovery period. As there was no evidence as to intention of the parties presented by the Employer, I am minded to agree with the Complainant’s assertions as being correct in law and in fact. The Respondent was bound by Section 86(1) of the Workplace Relations Act of 2015 amended Section 19 of the OWT Act (Section 1A) which provides that where an employee is absent from work by reason of certified illness then Annual leave continues to accrue as if the Employee was at the place of work and at the Employer’s disposal.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00023116-001 I Declare the complaint was well founded and I Require the employer to pay to the employee compensation of €1,000.00 being an amount that is just and equitable having regard to all the circumstances. |
Dated: 2nd October 2019
Workplace Relations Commission Adjudication Officer: Penelope McGrath