Complainant

Respondent

Parties

Gabriel  Chrystal

Garda Síochana Ombudsman Commission

Complainant

Respondent

Anonymised Parties

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Representatives

  James Kelly

 George O’Doherty, Deputy Director of Administration

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-00042461-001

12/02/2021

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.

An affirmation was administrated to the parties who gave evidence at the hearing in accordance with the Workplace Relations (Miscellaneous Provisions) Act 2021.

The Complainant is employed by the Respondent as an Investigator Officer and earned a fortnightly wage of €2,303.07. He has 29 days annual leave to take between the leave year of 1 April – 31 March.

He submitted his complaint to the Workplace Relations Commission on 12 February 2021 under the Organisation of Working Time Act 1997. He claims that he did not receive a paid holiday / annual leave entitlement.

The following is a summary of the relevant points of claim presented to me.

The Complainant applied for annual leave on 16 October 2020 for 5 days from 18 December 2020. This request was approved by his manager , a Senior Investigating Officer (SIO).  He submitted that at the time the leave was approved there was no requirement to seek cover while on leave nor was there a specific request from the SIO.

On 18 December 2020 the SIO informed the Complainant and his team of the requirements for the on call period commencing on 25 December 2020 for 7 days.

The Complainant responded by email reminding the SIO of his annual leave on the same day.

In reply the SIO asked who was covering for him while on annual leave that this was the standing order.

The Complainant stated the SIO never asked for cover and requested a copy of the standing order.

The SIO replied stating he did not know where it was documented, and he would have to find out. He continued; “It is common knowledge that your commitments to on call are your responsibility and I can’t believe that in the time you have worked for GSOC you have missed the emails of people seeking cover.” The SIO finishes the email by stating; “It is not a matter for debate , please try and arrange cover, so as not to leave the on call team short.”

Upon further enquiries the Complainant sent a further email to the SIO stating he had been “advised it is the employer obligation to arrange cover, this is apparently was as a result of a ECJ ruling on the matter”. He repeats his request for a copy of the standing order.

The SIO notes that the leave was authorised by him and he was not “trying to dissuade” him from taking the leave. He accepted the standing order was not written down, it was “common knowledge across the office.” The SIO states that “ is it discourteous to your fellow team members. You are letting them down by being unwilling to even try to resource cover (Especially when you know it is not affecting your leave status. Your stance is noted.” The email concludes with “Enjoy your leave”.

He cancelled his annual leave one day before he was due to take time with his family. He took annual leave in January 2021 for 5 days.

The Complainant submitted that the Respondent issued a circular dealing with applying for leave on 30 July 2021 which he argued was further evidence of the lack of policy in relation to the obligation to arrange cover.

In cross examination the Complainant was asked if he had cancelled his annual leave on the People Point system. He stated he had not as it was not his responsibility , it was that of the line managers. The Respondent asked who cancelled his annual leave in December to which the Complainant responded that he choose to cancel the leave as he left he had no choice given the tone of the SIO’s email.

The Complainant relied on case law from the Court of Justice of the European Union to support his claim that he was dissuaded from taking his annual leave to his detriment.

The Respondent outlined its role as a 24-hour service to accept referrals from An Garda Síochana in instances of death or serious harm. The on-call element of the role was covered by an annual allowance. The on-call roster issued between 9 – 10  months to the teams.

Evidence was provided on the on-call system and the need to have a minimum number of staff and grades in each team for operational reasons. It was accepted that it was the responsibility of the SIO to ensure an adequate on call team.

The Respondent’s case was that the circumstances of the email communication were “not of the standard we would accept” it was the Complainant himself that cancelled his annual leave which he clarified when questioned at the hearing. It was not cancelled by management, the SIO signed off his last email with “Enjoy your leave” which was understood that the SIO did not prevent the Complainant from taking his annual leave.

 The Respondent asked the Complainant when his on call was due to start to which the Complainant confirmed 31 December 2020. The Respondent confirmed this was after the period of annual leave sought by the Complainant.

The Respondent confirmed that between 1 April – 31 March the Complainant had 24 annual leave days. It was confirmed by the Complainant that he did not cancel the 5 days leave on the system and on that basis the Respondent accepted the record of annual leave days taken was incorrect. The Respondent did not doubt that the annual leave was not taken and agreed to reinstate the 5 days in the system. The Head of HR gave evidence that at no point had she been made aware there was an issue around the Complainant’s annual leave nor that the annual leave record was incorrect. She gave evidence on the option available to the Complainant to cancel leave on the People Point system but confirmed this had not been done. She agreed to correct the record without any issue.   

This claim was initiated under s. 27 of the Organistion of Working Time Act 1997 wherein the Complainant complains that he was prevented from taking 5 annual leave days in December 2020 by his line manager. The Act is clear that there is an onus on the employer that the employee receives their statutory annual leave entitlement.  Having carefully listened to both parties it is clear that the tone of the email from the SIO to the Complainant was not ideal but at no stage was the Complainant prevented from taking his annual leave by the Respondent. The Complainant himself accepted that he choose to cancel the annual leave days and took 5 days holiday in January 2021 instead. Consequently, there is no breach of the Act.

The email interaction between the Complainant and the SIO in December 2020 amounts to , at most, a minor workplace issue. Clearly this is an issue that could have been resolved locally and efficiently with an open conversation between the parties. Even if the Complainant was dissatisfied with the outcome, there was a HR team and/or adequate HR processes in place to resolve the issue internally in the first instance.  While this is not a requirement of the legislation or case law, it is a practical approach, one which can be applied in most workplace misunderstandings. 

The Respondent has a widely used online system for viewing annual leave days, requesting and cancelling days which is fully accessible to the Complainant. The Respondent confirmed on two occasions at the hearing that the annual leave system would be updated and the 5 days from December 2020 would be applied to the Complainant’s over all annual leave entitlement. It was also confirmed that due to special arrangements put in place due to the Covid19 pandemic that there was an exception made to allow for employees to carry over additional annual leave days which is open to the Complainant.

It is understood that a new procedure is in place as of the date of the hearing, so no such understanding should occur again in the future.

Having heard both parties, I declare that in the circumstances where the Complainant choose to cancel his annual leave in December 2020, I find his complaint is not well founded.

Annual leave- Not well Founded