DWT202

The Complainant sought to be paid for annual leave due to her while she was on protracted sick leave during the 2017 -2018 leave year and for the relevant portion of the 2018-2019 leave year, from 31 March 2018 up to her resignation on 4 February 2019, in accordance with s.23 of the Act.

The AO had awarded payment for 17 days’ leave, to the value of €2,069.92 for the period from 31 March 2018 to 4 February 2019 but had ruled that there was no entitlement for payment in respect of the 20 days of untaken leave in the 2017-2018 leave year.

The Complainant appealed this Decision.

Complainant arguments

The Complainant stated that the AO had erred in fact and in law.

Respondent arguments

The Respondent stated that the AO’s Decision was correct

The applicable law

Organisation of Working Time Act 1997

Times and pay for annual leave.

20.— (1) The times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements and subject—

( a) to the employer taking into account—

(i) the need for the employee to reconcile work and any family responsibilities,

(ii) the opportunities for rest and recreation available to the employee,

( b) to the employer having consulted the employee or the trade union (if any) of which he or she is a member, not later than 1 month before the day on which the annual leave or, as the case may be, the portion thereof concerned is due to commence, and

(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 afterthe 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 that leave year.

(2) The pay in respect of an employee’s annual leave shall—

( a) be paid to the employee in advance of his or her taking the leave,

( b) be at the normal weekly rate or, as the case may be, at a rate which is proportionate to the normal weekly rate, and

( c) in a case in which board or lodging or, as the case may be, both board and lodging constitute part of the employee’s remuneration, include compensation, calculated at the prescribed rate, for any such board or lodging as will not be received by the employee whilst on annual leave.

(3) Nothing in this section shall prevent an employer and employee from entering into arrangements that are more favourable to the employee with regard to the times of, and the pay in respect of, his or her annual leave.

(4) In this section “ normal weekly rate” means the normal weekly rate of the employee concerned’s pay determined in accordance with regulations made by the Minister for the purposes of this section.

Compensation on cesser of employment.

23.— (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,

(iii) in relation to a cessation of employment of an employee to whom subparagraph (iii) of the said paragraph (c) applies, that occurs during the first 12 months of the period of 15 months referred to in the said subparagraph (iii) —

(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.

Deliberation

The Court referred the parties to s. 23 (b) (iii) of the Act.

It was not disputed that this provision was applicable to the circumstances of the instant case.

On this basis, the Complainant is entitled to be paid for her untaken annual leave in 2017-2018, 20 days, plus the 17 days accrued in the period from 31 March 2018 to 4 February 2019.

This amounts to 37 days for which the Complainant is entitled to be paid.

The parties agreed, based on the pay of the Complainant, that the value of 37 days’ pay is €5168.97.

This amount is owed to the Complainant and the Court directs that it be paid within four weeks of the date of this Determination.

Determination

The AO’s Decision is over-turned.

The Court so directs.

Signed on behalf of the Labour Court



Tom Geraghty
CR______________________
29 January 2020Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.