Complainant

Respondent

Anonymised Parties

Engineering & Logistics Co-Ordinator

A Company

Representatives

Mason Hayes & Curran

Holmes O’ Mahony Sexton

Act

Complaint 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-00028533-001

20/05/2019

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

CA-00028533-002

20/05/2019

The Complainant started his employment with the Respondent on 14th June 2016 and resigned from his position on 3rd December 2018. The Complainant claims that he had to leave his job due to the conduct of the Respondent. The Complainant claims that he did not receive his annual leave and notice entitlements on cessation of employment.

This complaint was heard in conjunction with ADJ- 00019013.

Supplemental submissions were received from the parties on 22nd August, 29th August and 4th September 2019.

The Complainant submits that he did not receive his accrued but unused annual leave at the termination of his employment despite assurances being given by Directors, DOC and SOC that it would happen.

The Complainant argues that he sought and was given bereavement leave from 2nd October to 5th October 2018 (4 days). The Complainant strongly denies that “by verbal agreement between the Claimant and the Respondent, the requested period for bereavement leave was taken from the Claimant’s annual leave”, as claimed by the Respondent. The Complainant argues that this was never the case. In fact, there was never any mention of deducting bereavement leave from annual leave until the hearing of this matter. The Complainant submits that bereavement leave is not annual leave and should not be considered as such.

The Complainant submits that annual leave was approved following the completion of a holiday requests form which was approved by management. The Respondent acknowledged that it does not have an annual leave request form for a half day annual leave on 11th May 2018 or half day annual leave on 28th September 2018. The Complainant is therefore entitled to these days. The Complainant argues that he is entitled to be paid 5 days of annual leave in total. He further submits that the total outstanding payments due to him in this regard amounts to €550.

The Respondent argues that the Complainant received all his annual leave entitlements.

The Respondent exhibited a spreadsheet of annual leave for 2018. The document showed four days of ‘bereavement leave’ between 2nd and 5th October 2018. The Respondent was not in a position to clarify the matter at the hearing. It argued that it has no official written policy on bereavement leave and it is given on a case by case basis. The Respondent was not certain who approves the leave and how many days of leave are given to the employees and noted that it depends on “closeness” to the deceased.

Post-hearing, the Respondent confirmed that it has no specified “Bereavement Leave Policy” and takes requests for bereavement leave on a case by case basis. In the case of the Complainant, following the death of the Complainant’s brother in law, bereavement leave from 2nd October 2018 to 5th October 2018 was sought verbally by the Complainant via the HR department of the Respondent. The Respondent claimed that, by verbal agreement between the Respondent and the Complainant, the requested period for bereavement leave was taken from the Complainant’s remaining annual leave. The Complainant was paid for this week of annual leave.

The Respondent conceded that a request form must be completed for any annual leave requested. The Respondent accepted that it had no holiday forms on file for the following:

·         Half day annual leave on 11th May 2018

·         Half day annual leave on 28th September 2018

·         The period of bereavement leave from 2nd to 5th October 2018.

The Respondent argues that the claim in respect of untaken annual leave in 2018 as claimed by the Complainant is not valid and should be rejected.

Section 23 of the Organisation of Working time Act states as follows:

“Compensation on cesser of employment

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

The Complainant argues that he is owed 5 days annual leave in total. The Respondent denies the claim.

The parties agreed that the Respondent had in place an ‘Annual Leave Request Form’. The form must be signed by the employee and the approving / rejecting person.

The Respondent argued that the Complainant was given a half day annual leave on 11th May 2018, a half day on 28th September 2018 and 4 days between 2nd and 5th October 2018. The Respondent was unable to present any records confirming this assertion except an Excel spreadsheet. The Respondent did not have ‘Annual Leave Request Form’ completed in respect of the dates in question. The spreadsheet exhibited by the Respondent shows clearly that the period between 2nd and 5th October 2018 was considered to be bereavement leave, which the Respondent claims was agreed to be taken as annual leave. This was denied by the Complainant.

Based on the evidence before me, I find that the Complainant’s claim in this regard is well founded.

I declare this complaint to be well founded and I order the Respondent to pay the Complainant €550 in respect of his outstanding annual leave entitlement. In addition, I direct the Respondent to pay the Complainant €500 in compensation for breaches of his rights under this Act.

The Complainant submits that he was not paid his notice despite being given assurances that the Respondent would do so by its Directors, SOC and DOC.

The Respondent submits that the Complainant resigned his employment verbally with immediate effect and without notice, on 3rd December 2018 and accordingly is not owed any notice pay.

In view of my finding in respect of ADJ-0001913 that the Complainant resigned his employment due to the conduct of the Respondent and he was constructively dismissed I find that he has no entitlement to notice (Martin Fitzgerald v Pat the Baker [1999] 10 E.L.R. 227).

I declare this complaint not to be well founded.

Annual leave-notice