Complainant

Respondent

Parties

Hayley  Leacy

Delfim Retail Daybreak Greenviille Stores

Representatives

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-00040056-001

24/09/2020

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

CA-00040056-002

24/09/2020

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 15 of the  European Communities (Organisation of Working Time) (Mobile Staff in Civil Aviation) Regulations 2006 - S.I. No. 507 of 2012

CA-00040056-003

24/09/2020

The Complainant was employed as a Shop Assistant by the Respondent from 23rd July 2012 to 22nd June 2020, when she resigned.  The Complainant submitted three complaints under the Organisation of Working Time Act, 1997, alleging that she did not receive her paid holidays/annual leave entitlement, and that she did not her public holiday entitlement and that she did not receive her paid holiday/annual leave entitlement in accordance with the [European Communities (Organisation of Working Time) (Mobile staff in civil aviation) Regulations, 2006

The Respondent was a retail store.  The Respondent confirmed that the Complainant had been on maternity leave, followed by sick leave and that the issues arose from that time.  The Respondent had sought advice from an accountant and believed that, they had advised the Complainant of the details of monies due and were agreeable to pay those monies but that the Complainant disputed the accuracy of those amounts.

CA- 00040056- 001

The Complainant submitted that she went on maternity leave on 24th July 2017 until 15th January 2018 and that she then went on to illness benefit from 16th January 2018 to 3rd June 2019.  This period of illness was followed directly by a second maternity leave from 4th June 2019 to 1st December 2019.  She then went back on to illness benefit from 2nd December 2019 until 19th June 2020.  She submitted that she resigned her position on 22nd June 2020.  She submitted that she did not receive payment for her annual leave accrued during the periods of her maternity leave and sickness absence.

She further submitted that she made phone contact with the Respondent in relation to her entitlement, in or around two weeks after she had submitted her resignation.  She submitted that the Respondent stated that he was not aware that she was entitled to any payment but that he would clarify the situation with his accountant.   In her submission she stated that the Respondent reverted to her at the end of August 2020 and asked her to meet with him and his wife to discuss the matter.    The Complainant submitted that she enquired as to why she should attend a meeting and that the Respondent replied that she was the one who had made contact regarding her entitlement.

The Complainant submitted that she did attend the meeting and that at the end of that meeting she was provided with a letter which confirmed that she was entitled to be paid for 33.5 days annual leave based on 87 “qualifying” weeks. The letter also stated that she had been overpaid her annual leave entitlement for 2015 and 2016 by a total of 61.95 hours and that this overpayment would be deducted from the monies due.  The Complainant appended a copy of the letter to support her position.

The Complainant contended that she was entitled to a total of 54 days annual leave for the period in question i.e. from 24th July 2017 to 19th June 2020. She also submitted that no evidence of the details of previous overpayment of leave was ever given to her.

CA- 00040056- 002

The Complainant had made a claim for non-payment of annual leave underthe [European Communities (Organisation of Working Time) (Mobile staff in civil aviation) Regulations, 2006, however, there was only one submission in relation to the non-payment of annual leave which is outlined under CA-000400056-001.

CA- 00040056- 003

The Complainant submitted that she went on maternity leave on 24th July 2017 until 15th January 2018 and that she then went on to illness benefit from 16th January 2018 to 3rd June 2019.  This period of illness was followed directly by a second maternity leave from 4th June 2019 to 1st December 2019.  She then went back on to illness benefit from 2nd December 2019 until 19th June 2020.  She submitted that she resigned her position on 22nd June 2020.  She submitted that she did not receive payment for public holiday entitlement during the periods of her maternity leave and sickness absence.

She further submitted that she made phone contact with the Respondent in relation to her entitlement in or around two weeks after she had submitted her resignation.  She submitted that the Respondent stated that he was not aware that she was entitled to any payment but that he would clarify the situation with his accountant.   In her submission she stated that the Respondent reverted to her at the end of August 2020 and that she attended a meeting with the Respondent to discuss the issues.  The Complainant submitted that at the end of that meeting she was provided with a letter which confirmed that she was entitled to be paid for 15 public holidays during the period. The Complainant appended a copy of the letter to support her position.

In her submission the Complainant contended that she was entitled to receive payment for a total of 19 public holidays for the period in question i.e. from 24th July 2017 to 19th June 2020.

CA- 00040056- 001

The Respondent submitted that the Complainant first went on maternity leave on 24th July 2017 and that she took two weeks paid holidays immediately prior to her maternity leave. He further submitted that the Complainant contacted him at the end of her maternity leaving, advising that she was ill and so, was unable to return to work and that she later submitted a bundle of medical certificates to him at the end of a 12-week period.  He submitted that the Complainant called to the shop intermittently over the next 6 months to update on her condition and that he took those opportunities to remind her of the need to submit medical certificates on a regular basis.  He confirmed that he wasn’t insistent with her about this due to the nature of her illness and that he continued to receive medical certificates intermittently up to 21st September 2018.

In his submission, the Respondent outlined that in early May the Complainant called to the shop and requested that he sign a maternity benefit application for her.  He expressed concern that he wasn’t sure about this as he hadn’t heard from her in a long while and hadn’t received certs for some considerable time, but that he would seek clarification from the Department of Social Welfare.  He submitted that on foot of clarification from the department he proceeded with the sign off of the relevant forms.  The Respondent submitted that the last medical certificate received by him covered the Complainant’s absence from 22nd February 2019 to 8th March 2019.

The Respondent submitted that at the end of the second maternity leave the Complainant made contact to inform him that she was still not in a position to return to work and she provided him with medical certificates from 2nd December 2019 to 16th January 2020. The Respondent further submitted that the Complainant resigned her position on 22nd June 2020 and that two weeks later she made contact to say that she was entitled to 64 days annual leave.  The Respondent submitted that he advised he would need to get advice on the matter and would revert.  He further submitted that on 28th July the Complainant submitted medical certificates to cover the period from 17th January 2020 onwards.

The Respondent submitted that having received advice in relation to the Complainant’s entitlements 

he met with her and presented her with that advice, went through the calculations and agreed that she would take advice on the matter and revert to him.  The Respondent submitted that he offered to send on any documentation that would assist the Complainant in reviewing the matter but that he never heard further from her until he received the notice of the complaint to the Workplace Relations Commission.

The Respondent submitted details of the Complainant’s annual leave entitlement for the period and clarified that her holiday pay was calculated based on the medical certificates received by him.  He further submitted that he had included the last 5 months of medical certificates submitted after the Complainant resigned as a “goodwill gesture”.

The Respondent further submitted that when calculating the Complainant’s entitlement, it came to light that an overpayment had occurred in 2015 and 2016, that he brought this to the attention of the Complainant at the August meeting and that it was reasonable to expect that any overpayment would be deducted from any additional payments to be made. He also appended payroll details from 2015 to 2020, as well as a breakdown of hours worked to support his position.  In addition, he provided details of annual leave taken in 2017.

Based on the above information and calculations arising therefrom, the Respondent submitted that the Complainant was entitled to be paid for 33.5 days holidays as set out in his letter of 15th September 2020.

CA- 00040056- 002

The Complainant had made a claim for non-payment of annual leave underthe [European Communities (Organisation of Working Time) (Mobile staff in civil aviation) Regulations, 2006, however, there was only one submission in relation to the non-payment of annual leave which is outlined under CA-000400056-001.

The Respondent did not provide a separate response to this complaint.

CA- 00040056- 003

The Respondent submitted that the Complainant first went on maternity leave on 24th July 2017 and that she contacted him at the end of her maternity leave, advising that she was ill and so, was unable to return to work and that she submitted a bundle of 12 weeks medical certificates to him at the end of that period.  He submitted that the Complainant called to the shop intermittently over the next 6 months to update on her condition and that he took those opportunities to remind her of the need to submit medical certificates on a regular basis.  He confirmed that he wasn’t insistent with her about this due to the nature of her illness and that he continued to receive medical certificates intermittently up to 21st September 2018.

In his submission, the Respondent outlined that in early May the Complainant called to the shop and requested that he sign a maternity benefit application for her.  He expressed concern that he wasn’t sure about this as he hadn’t heard from her in a long while and hadn’t received certs for some considerable time, but that he would seek clarification from the Department of Social Welfare.  He submitted that on foot of clarification from the department he proceeded with the sign off of the relevant forms.  The Respondent submitted that the last medical certificates received by him at that time, covered the Complainant’s absence from 22nd February 2019 to 8th March 2019.

The Respondent submitted that at the end of the second maternity leave the Complainant made contact to inform him that she was still not in a position to return to work and she provided him with medical certificates from 2nd December 2019 to 16th January 2020. The Respondent further submitted that the Complainant resigned her position on 22nd June 2020 and that two weeks later she made contact to say that she was entitled to be paid for 12 public holidays.  The Respondent submitted that he advised he would need to get advice on the matter and would revert.  He further submitted that on 28th July the Complainant submitted medical certificates to cover the period from 17th January 2020 onwards.

The Respondent submitted that having received advice in relation to the Complainant’s entitlements 

he met with her and presented her with that advice, went through the calculations and agreed that she would take advice on the matter and revert to him.  The Respondent submitted that he offered to send on any documentation that would assist the Complainant in reviewing the matter but that he never heard further from her until he received the notice of the complaint to the Workplace Relations Commission.

The Respondent appended payroll details from 2015 to 2020, as well as a breakdown of hours worked to support his position. 

Based on the above information and calculations arising therefrom, the Respondent submitted that the Complainant was entitled to be paid for 15 public holidays as set out in his letter of 15th September 2020.

CA- 00040056- 001

At the hearing both parties’ oral evidence was consistent with their submissions and I noted no dispute between the parties in relation to the dates of maternity leave and sick leave.  I also noted that the Complainant did not dispute the Respondent’s information in relation to the submission of medical certificates.

Annual Leave Claim

On reviewing the detail of the annual leave claim I noted the Complainant’s working weeks and maternity leave arrangements for 2017 were as follows:

·        Prior to maternity leave     On payroll for 30 weeks (total hours worked 812.5)

·        Maternity leave                    24th July 2017 to year end 2017

I noted, from the payroll records provided by the Respondent that the Complainant availed of 2 weeks paid leave immediately prior to maternity leave and together with leave taken earlier in the year she was paid for a total of 150 hours annual leave for 2017 as follows:

·        Week ending 15th Jan 2017      15 hours

·        Week ending 22nd Jan 2017      37.5 hours

·        Week ending 5th Feb 2017        22.5 hours

·        Week ending 16th Jul 2017         37.5 hours

·        Week ending 23rd Jul 2017          37.5 hours

Based on the above working weeks and maternity leave I concur with the Respondent’s assessment that the Complainant had an entitlement to 111.43 hours of annual leave and I noted that she was paid for 150 hours of annual leave during that year.

On reviewing the detail of the annual leave claim I noted the Complainant’s qualifying weeks (certified illness and maternity leave) for 2018 were as follows:

·        Maternity leave       1st Jan 2018 to 15th Jan 2018

·        Illness absence         16th Jan 2018 to 31st Dec 2018

However, I noted that the Respondent submitted that the Complainant did not provide medical certificates from 23rd March 2018 to 12th April 2018 and again from 22nd September 2018 to year end and that the Respondent calculated that the Complainant was therefore due to be paid annual leave entitlement based on a total of 30.5 qualifying weeks. 

Based on the above maternity leave and certified sick leave I assess that the Complainant’s entitlement should be based on 33.5 qualifying weeks and should be 72.58 hours of annual leave for 2018.

 On reviewing the detail of the annual leave claim I noted the Complainant’s qualifying weeks (certified illness and maternity leave) for 2019 were as follows:

·        Maternity leave       3rd Jun 2019 to 1st Dec 2019

·        Illness absence         1st Jan 2019 to 2nd Jun 2019 and from 2nd Dec 2019 to 31st Dec 2019

However, I noted that the Respondent submitted that the Complainant did not provide medical certificates from 1st Jan 2019 to 21st Feb 2019 and from 9th Mar to 2nd Jun 2019 and that on that basis the Respondent calculated that the Complainant was due to be paid annual leave entitlement based on a total of 34 qualifying weeks (26 maternity leave and 8 certified sick leave).

Based on the above maternity leave and certified sick leave I concur with the Respondents assessment of a total of 34 qualifying weeks and assess the annual leave entitlement of the Complainant to be 73.66 hours.

On reviewing the detail of the annual leave claim I noted the Complainant’s qualifying weeks (certified illness) for 2020 were as follows:

·        Illness absence         1st Jan 2020 to 22nd Jun 2020

However, I noted that the Complainant submitted medical certificates after the date of her resignation and that those certs covered from 16th January 2020 to 19th June 2020. (22.5 weeks).  As the Respondent confirmed that he was accepting those certs retrospectively I assess that the Complainant’s entitlement should be based on 22.5 qualifying weeks and should be 48.75 hours of annual leave up to the last day of certified absence prior to her resignation.

I further noted that the Respondent submitted that the Complainant was overpaid annual leave in 2015 and 2016.

Having reviewed the payroll information provided for those years I noted that while the Complainant was overpaid in 2015, she was underpaid in 2016 as follows:

·        2015 - Total hours of annual leave entitlement – 112.82; total hours of annual leave paid 150; annual leave overpaid  37.18 hours

·        2016 -  Total hours of annual leave entitlement – 133.8; total hours of annual leave paid 120; annual leave outstanding 13.8 hours

Based on all of the above I find that the Complainant had an annual leave entitlement from 2015 up to the last day of certified sick leave in 2020 to a total of 553.04 hours. I also find that of that amount she was paid for a total of 420 hours during the same period, leaving a total of 133.04 hours due to her.  In all of these circumstances I find that the Complainant is due to be paid for an annual leave entitlement of 133.04 hours.

CA- 00040056- 002

The Complainant had made a claim for non-payment of annual leave underthe [European Communities (Organisation of Working Time) (Mobile staff in civil aviation) Regulations, 2006, however, there was only one submission in relation to the non-payment of annual leave which is outlined under CA-000400056-001.  The Respondent did not provide a separate response to this complaint.

At the hearing the Complainant advised that she was unsure when completing her submission and so she had included a claim under this statutory provision.  Upon clarification of the employee group covered by this provision the Complainant confirmed that she did not have a separate claim, and she accepted that she did not have cover of this legislation. In these circumstances she agreed to withdraw this complaint.

At the time of finalising this decision no confirmation of the withdrawal has been received by the Workplace Relations Commission and in those circumstances this Adjudicator must issue a finding in relation to the complaint.

I noted that the Complainant was a Shop Assistant, working in the retail sector.  I noted that S.I. No. 507 of 2006, [European Communities (Organisation of Working Time) (Mobile staff in civil aviation) Regulations, 2006, defines Mobile staff in civil aviation as “crew members on board a civil aircraft”.   Based on this definition I find that the Complainant does not have standing to pursue a claim under this legislation.

CA- 00040056- 003

I noted the Complainant submission that she did not receive her entitlement to public holidays which occurred during the period of her two maternity leaves and her absence due to illness.  I noted the Respondent correspondence where he identified that she was entitled to 15 days pay in lieu of public holidays.

Having reviewed the periods of maternity leave and the periods of illness absence that were covered by medical certificates I find that the Complainant has an entitlement to all public holidays that fell within the periods of her maternity leave and to all public holidays that fell within the periods of her certified sick leave.  All other periods can only be considered to be unexplained absences.  In these circumstances I find her entitlement to be as follows:

·        2017 - 4 days; 2018 - 4 days; 2019 – 3 days; 2020 - 5 days

Based on the above I find that the Complainant is entitled to be paid for a total of 16 days in lieu of public holidays.

CA- 00040056- 001

I have found that the Complainant has an outstanding annual leave entitlement for the years 2015 – 2020 of 133.04 hours.  Therefore it is my decision that the complaint is well founded and that the Respondent should now pay the Complainant this entitlement.

CA- 00040056- 002

I have found that, based on the definition contained in S.I. 507 of 2006 the Complainant does not have standing to pursue a complaint under this legislation In that context it is my decision that this complaint is not well founded.

CA- 00040056- 003

I have found that the Complainant has an outstanding public holiday entitlement for the years 2017 – 2020 of 16 days.  Therefore it is my decision that the complaint is well founded and that the Respondent should now pay the Complainant this entitlement.

Organisation of working time; annual leave entitlement, public holiday entitlement