ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00025283
Parties:
| Complainant | Respondent |
Anonymised Parties | Accounts and Office Manager | Facilities Engineering Company |
Representatives |
|
|
Complaint(s):
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-00029945-001 | 26/07/2019 |
Date of Adjudication Hearing: 04/02/2020
Workplace Relations Commission Adjudication Officer: Hugh Lonsdale
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The complainant submitted a claim that when she left the respondent’s employment she was not paid for outstanding annual leave that she had accumulated when on sick leave. A hearing into the claim was scheduled for 4 February 2020. The complainant attended. The respondent did not attend the hearing but I am satisfied they were correctly informed of the date, time and location of the hearing. I proceeded to investigate the complaint in their absence. |
Summary of Complainant’s Case:
The complainant started working for the respondent in 2007. She was paid €741 per week. She had surgery in July 2016 and then had further surgery in July 2017. She went on sick leave from 18 May 2017 until 13 February 2019 when she sent in her resignation. She sent the respondent monthly sick certificates during this period, which she produced as evidence at the hearing. She claims that she is entitled to receive payment for the annual leave she accumulated during her sick leave. She requested this payment from the respondent but they said she was not entitled to any such payment. |
Summary of Respondent’s Case:
The respondent did not attend the hearing and made no written submission to the Workplace Relations Commission. |
Findings and Conclusions:
The Organisation of Working Time Act 1997 states: 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. I conclude that in accordance with section 20(1)(c)(iii) the complainant was entitled to leave for the period of her sick leave. On terminating her employment she was, in accordance with Section 23 (b) (iii) entitled to be paid for that accumulated leave which she was unable to take. The payment is for untaken annual leave as follows; 2017-2018, no leave taken; 20 days, and 2018-2019 up to termination on 13 February 2019, 17 days. This amounts to 37 days for which the Complainant is entitled to be paid at €148.20 per day, which is a total of €5,483.40. |
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.
For the reasons given above I find the complaint under the Organisation of Working Time Act is well founded and I order the respondent to pay the complainant €5,483.40 in respect of annual leave entitlement and a further €5,000 compensation for refusing to pay the complainant’s entitlement under the Act when she requested this on termination of her employment. |
Dated: 26th March 2020
Workplace Relations Commission Adjudication Officer: Hugh Lonsdale
Key Words:
Payment for accrual of annual leave during sick leave |