Complainant

Respondent

Anonymised Parties

H.G.V. Driver

Haulage Company

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-00032599-001

27/11/2019

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

CA-00032599-002

27/11/2019

The complainant was employed as a H.G.V. driver with the respondent from 15 October 2017 to 10 July 2019. His basic working week was 40 hours and he was paid €700 gross. The complainant claims that when his employment was terminated, he was not paid the full amount due to him for outstanding annual leave and public holidays. The complaint form was received by the Workplace Relations Commission on 27 November 2019.

The respondent disputes that the complainant was not paid the full amount due for outstanding annual leave and public holidays.

The complainant was employed by the respondent from 15 October 2017 to 10 July 2019. He was on certified sick leave from 08 January 2019 to 12 March 2019. In April 2019 the complainant was involved in a road traffic accident at work, for which he was not responsible. Because of the road traffic accident, he was again on certified sick leave from 17 April to 14 July 2019. In early July the complainant received notice that his employment would terminate on 10 July 2019.

The complainant received payment of €346.39 (net) in respect of annual leave outstanding at the date of termination. He claims that he should have received €1820.00 being payment of €140.00 per day for 10 days annual leave and 3 public holidays for the period 01 January to 10 July 2019. His is claiming an outstanding amount due to him of €1,473.61 gross.

The respondent, relying on calculations produced by their accountant, stated the correct payments had been made. The complainant had two periods of sick leave in 2019. The first was for a period of when the complainant required surgery. The respondent did not provide employees with a paid sick leave scheme. The second period was following a road traffic accident at work. The respondent stated that although he made were numerous requests the complainant had not submitted sick notes for either absence. Due to the serious road traffic accident they offered support by paying him for the first 5 weeks of absence even though they did not operate a paid sick leave scheme.

On termination of employment in July 2019 the respondent made a payment for outstanding annual leave of €376.32 gross (€346.39 net) being 8% of the payments made to the complainant between 01 January and 10 July 2019. The respondent stated he believed he had made the full payment due to the complainant and nothing further was due.

CA-00032599-001 - Claim for 10 days annual leave under the Organisation of Working Time Act, 1997.

The complainant’s claim is that he was due to be paid for 10 days annual leave at the termination of his employment. He calculated he was due €1,400.00 gross but only received €376.32 gross. He calculated the 10 days as one-third of a week for each month from 01 January to 10 July 2019.

The respondent calculated the payment for annual leave based on 8% of the payments made to the complainant between 01 January and 10 July 2019 and paid the complainant €376.32 gross.

The Organisation of Working Time Act, 1997 provides the following at Section 19:

Entitlement to annual leave.

19.— (1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or

she works at least 117 hours, or

(c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Provided that if more than one of the preceding paragraphs is applicable in the case

concerned and the period of annual leave of the employee, determined in accordance

with each of those paragraphs, is not identical, the annual leave to which the

employee shall be entitled shall be equal to whichever of those periods is the greater.

The statutory leave year commences on 01 April and ends on 31 March next following. The Labour Court held in Waterford County Council v O’Donoghue DWT0963 “The only leave year which is cognisable for the purpose of determining if an employee received his or her statutory entitlement is that prescribed by the Act itself, that is to say a year starting on 1st April and ending on 31st March the following year. While different arrangements may be put in place for administrative purposes, in determining if a contravention of the Act occurred that Court can only have regard to the leave allocated to an employee in the statutory period.” The claimant bases his claim on the period 01 January to 10 July 2019. This period covers two statutory leave years, they are 01 April 2018 to 31 March 2019 and 01 April 2019 to 10 July 2019 (date of termination of employment).

Complaints under the Organisation of Working Time Act must be presented within six months beginning on the date of the contravention to which the complaint relates.   In Singh & Singh Ltd and Guatam DWT0544the Labour Court held, relying on the decision of Lavan J in Royal Liver v Macken [2002] 4 IR 428, “From this judgement it is clear that where an employer fails to provide an employee with the requisite amount of paid annual leave the contravention of the act occurs at the end of the leave year to which the leave relates.”   “Where employment cesses during a leave year an employer is required to pay the employee cessor pay in compensation for any outstanding annual leave. Failure to do so constitutes a contravention of the Act which occurs on the date on which the employment terminates.”

The complaint was received by the Workplace Relations Commission on 27 November 2019.   The relevant six-month period is 28 April 2019 to 27 November 2019. The complainant claimed for leave from 01 January 2019 to 10 July 2019, the date of termination of employment. The period from 01 January to 31 March 2019 falls in the statutory leave year 01 April 2018 to 31 March 2019. The 31st of March 2019 is outside the six-month cognisable period and therefore I do not have jurisdiction in respect of that leave year.

The period from 28 April 2019 to 10 July 2019 is within the six-month period. The appropriate calculation of the payment for annual leave for this period of 10 weeks and 3 days is 8% of the hours worked. Based on €140 per day and a 40-hour week the amount due for outstanding leave at the date of termination was €593.60 gross. The complainant was paid €376.32 gross leaving a balance of €217.28 gross. However, during the whole of this period the complainant was on sick leave. The period of sick leave commenced on 17 April 2019 and continued to the date of termination, 10 July 2019. The entitlement to accrue annual leave during a period of sick leave is provided for in Section 19 (1A) as inserted by Section 86 (1A) of the Workplace Relations Act, 2015:

Section 19 Organisation of Working Time Act, 1997:

(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 19 (1A) provides that the employee on sick leave will continue to accrue annual leave “if the employee provided to his or her employer a certificate of a registered medical practitioner in respect of that illness”. The respondent stated that although there were numerous requests the complainant did not submit sick notes. The complainant did not dispute that. As the complainant did not comply with the requirement in Section 19 (1A) to submit a certificate of a registered medical practitioner in respect of his illness the period of sick leave cannot be deemed to be time at work, as in Section 19 (1A) (a) or (b), for the purpose of accruing annual leave. Due to the complainant’s noncompliance with the requirement of Section 19 (1A) I decide that the complaint is not well founded.

CA-00032599-002 – Claim for 3 public holidays under the Organisation of Working Time Act, 1997.

The complainant’s claim is that he was due to be paid for 3 public holidays, Easter Monday, first Monday in May and first Monday in June at the termination of his employment.  

A claim under the Organisation of Working Time Act, 1997 in respect of public holidays must be brought within six months of the date of the public holiday. Held by Lavan J in Royal Liver v Macken [2002] 4 IR 428. The complainant has claimed for three public holidays however only two of those fell within the cognisable period, 28 April to 10 July 2019. They are the May and June public holidays.

Entitlement to public holidays is provided for in Section 21 of the Organisation of Working Time Act, 1997:

Entitlement in respect of public holidays.

21.— (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) […]

(3) […]

(4) […]

(5) […]

(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.

It is clear that a full-time employee is entitled to one of the benefits listed in respect of public holidays. The complainant was on sick leave when the May and June public holidays occurred and so did not received the benefits set out in Section 21.   The respondent provided copies of payslips dated 01/05/2019 and 22/05/2019 together with a summary of payments made to the complainant at the date of termination. These documents show that no payment was made for the public holidays for May or June 2019. The complainant is entitled to payment of €280.00 gross in respect of the two public holidays in May and June 2019. I am satisfied that the claim in respect of the May and June 2019 public holidays is well founded.

CA-00032599-001 - Claim for 10 days annual leave under the Organisation of Working Time Act, 1997.  

The claim was made in respect of the period 01 January to 10 July 2019. As the claim for the statutory leave year 01 April 2018 to 31 March 2019 was received by the Workplace Relations Commission on 27 November 2019, more than six-months after the end of the leave year, I do not have jurisdiction to in respect of that leave year.

The claim in respect of the period 28 April to 10 July 2019 was received within the six-month period. However, the complainant was on sick leave for the whole period. As the complainant did not comply with the requirement in Section 19 (1A) to submit a certificate of a registered medical practitioner in respect of his illness the period of sick leave cannot be deemed to be time at work, as in Section 86 (1A) (a) or (b), for the purpose of accruing annual leave.   As the complainant did not comply with requirements of Section 19 (1A) I decide that the complaint is not well founded.

CA-00032599-002 – Claim for 3 public holidays under the Organisation of Working Time Act, 1997.

The complainant’s claim was in respect of the public holidays occurring on Easter Monday, first Monday in May and first Monday in June. The claim was received by the Workplace Relations Commission on 27 November 2019. Easter Monday fell on 22 April 2019 and is therefore outside the relevant six-month period.

The other two public holidays are within time, 28 April 2019 to 10 July 2019. I find that the complainant did not receive the benefit of these two public holidays as provided for in Section 21 of the Organisation of Working Time Act, 1997. The complainant is entitled to be paid for these two public holidays.. I decide the complaint is well founded and I direct the respondent to pay to the complainant €280.00 gross, being two days’ pay.

Payment for annual leave

Payment for public holidays

Sick leave and annual leave

Sick leave and public holidays