Complainant

Respondent

Anonymised Parties

Admin

Educational Institute

Representatives

Peter Glynn SIPTU

 HR

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00035254-001

16/03/2020

I confirmed the details on the claim form were correct and the claim was received by the WRC on 16 March 2020.

The Complainant was employed by the Respondent since July 2002. The Complainant stated that the Respondent had calculated her holiday entitlements wrong.  The Respondent is looking for the Complainant to pay back holidays as they stated she took extra holidays in the last couple of years. The Complainant stated she was never advised that four days extra holiday entitlement was worked into the roster and had emails from management setting out her holiday entitlement.

The Complainant’s representative SIPTU stated that the Complainant had exhausted the internal process and that the current policy allowed for this and then was referred to external bodies including WRC.  The representative stated that it was in breach of the collective agreement and did not have collective repercussions and it was a contractual issue not a collective matter.

The Complainant stated that she always thought she had 22 days and not 18 days.  Four days are worked into the roster, but this changed in 2018 to become discretionary for the Complainant to take them.

The Complainant’s representative first raised the issue on 9 April 2018 when the Respondent changed practice to remove the four days from being set days to allowing the Complainant to take them when she wanted to.

The Complainant’s representative confirmed the Complainant commenced employment in the Educational Institute in October 2016, and over that time the claimant had carried out all duties with due diligence and professionalism.

The Complainant’s representative stated that within the contract of employment, the terms pertaining to annual leave stated that the claimant was entitled to 22 days leave per annum. The contract further stated that bank holidays were discharged through the shift cycle and that arrangements for discharge of Annual Leave must be approved in advance by the Manager i.e. (Officer).

The Complainant’s representative stated that following the Complainant’s employment in 2016, she e-mailed Operations enquiring what her annual leave entitlements would be for year ending 2016. Operations advised the Complainant that for year ending 2016 she had 4.5 days annual leave to take. Operations further advised that as per her contract she had 22 days Annual Leave in a full year.

The Complainant’s representative stated that in 2018, the claimant was elected to the position of deputy shop steward and in April 2018 the Respondent entered negotiations with the Union regarding roster changes.

The Complainant’s representative stated that during the meeting, the Respondent advised the Complainant that four of her annual leave days were discharged through the roster. The Complainant contends that she was never advised of this, and further maintains that Operations had clearly identified 22 days annual leave as per her contract.

The Complainant’s representative stated that the Complainant’s contract of employment had already been the subject of a complaint in 2017 with the WRC and what was somewhat surprising the Respondent failed to mention the subject of discharged leave within the roster.

The Complainant’s representative stated that following the hearing on the 9 April 2018, the Complainant emailed HR on 11 April 2018 to enquire if annual leave could be discharged throughout her roster without her knowledge or agreement. The Complainant received a reply from HR stating that "Annual Leave was requested by her to her direct manager, it was not allocated ".

The Complainant’s representative stated it was worth noting that the Education Institute’s HR department issued revised Annual Leave arrangements following agreements from Irish Congress of Trade Unions and Department. Within the notice issued to staff the Respondent failed to identify any protocols concerning discharged leave through rosters.

The Complainant’s representative stated that the Complainant contended that the decision taken by the Respondent had caused unnecessary stress and anxiety.

The Respondent stated the Complainant received notification by post and not by email so she was late in receiving same and objected accordingly.

The Respondent stated they objected to a hearing of this case on seeing the claim via an adjudication officer hearing the case. The Respondent stated the Complainant was late in doing so per Section 13 of the Act due to Covid restrictions.  The Respondent stated they did not see this objection to be in breach of their agreed collective agreement. The Respondent stated this case would have a knock-on effect on other staff members across the Education Institute and in particular five of the Complainant’s colleagues.

The Respondent stated that the claim refers to 7.5 days. The Respondent stated the Complainant commented that this was what she had carryover of outstanding holidays since she started. 

The Respondent confirmed the Complainant was employed with the Education Institute and commenced in the role in October 2018 on a fixed term basis initially, subsequently confirmed as permanent.

The Respondent confirmed that colleagues who work in the same role as the Complainant work on a 24/7/365 basis, over a three-shift roster.

The Respondent stated that prior to the Public Sector revised annual leave effective from 7 January 2014, the Education Institute provided four privilege days over the Christmas period each year under the then Institution Holidays Policy, which were compulsory closure days.

The Respondent confirmed that Employees are rostered on a six-week cycle, over a 24/7/365 basis and are required to work over the Christmas period, therefore the discharge of these 4 days was worked into the agreed published roster.

The Respondent stated that all such privilege days across the Public Sector were encompassed in the newly revised annual leave allocation for Public Sector workerson foot of Labour Court Recommendation No. LCR 20679.

The Respondent stated that members of staff in place prior to 7 January 2014 had these four days added to their annul leave allocation at the time of transition.

The Respondent stated that Annual Leave for new appointees on or after 7 January 2014 was inclusive of any compulsory closure days previously covered by the Education Institute’s holiday policy. This was set out in the Annual Leave Policy effective of 7 January 2014.

The Respondent stated that employee and other related grades in employment prior to 7 January 2014 had 20 days annual leave, with former privilege days added, resulting in 24.5 days leave p.a. inclusive of compulsory closure days at Christmas period each year.

The Respondent stated that newly appointed employee’s and other general operative related grades, who commenced employment on or after 7 January 2014 have 22 days annual leave, inclusive of compulsory closure (privilege) days at Christmas period each year.

The Respondent confirmed there are approx. 1,500 members of staff across the Education Institute who come under the on or after 7 January 2014 annual leave entitlement. 

The Respondent stated that the roster historically provided for the discharge of the nine public holidays and four closure days at the Christmas period. This required additional 13 days p.a. off in addition to two rest days per week. The roster actually provided for an additional 15 days p.a. off in total.

The Respondent stated that candidates interviewed for vacant employee roles were informed at interview of the working arrangements; the roster and how it worked noting that it provided for the discharge of public holidays and four Christmas closures days (when it applied). This was in addition to local induction on commencement of employment.

The Respondent stated the Education Institute operated a devolved system where local managers-maintained leave records and had the discretion to allow staff to discharge annual leave from a future year, resulting in the leave entitlement reducing accordingly for the following year.

The Respondent stated the employee roster was renegotiated throughout 2018 and came into effect in January 2019 with the provision for the four closures days at Christmas removed from the roster. These four days were returned to employee’s discretionary annual leave allocation

The Respondent stated this resulted in employees who were in employment prior to 7 January 2014, having 24.5 discretionary days annual leave each year. While those employees whose employment commenced on or after 7 January 2014 having 22 discretionary days annual leave each year. The Complainant is included in the latter of these.

The Respondent stated that the Complainant was involved with the above discussions as deputy shop steward.  Therefore, clearly demonstrated her awareness of the fact that the four Christmas closure days were worked into the roster in April 2018, if it was unclear to her previous.

The Respondent stated that the Complainant never raised the issue until early 2020 when she questioned a deficit of leave carried into 2020.

The Respondent stated that at interview for the role of employee, the Complainant as like other candidates were informed of the workings of the roster including the provision for the nine public holidays and four closure days at Christmas being worked into the roster along with weekly rest days.

The Respondent stated that at local induction on commencement of employment, this was again informed to the Complainant.

The Respondent stated that in November 2016 the Complainant enquired as to her annual leave entitlement. The Operations Manager advised that she had 22 days leave as per her contract. However, the Operations Manager failed to clarify that four of those days were worked into the published roster for the closure days at Christmas each year in addition to public holidays, which understandably may have led to confusion.

The Respondent stated that in 31 January 2020 the Complainant queried her carry over leave into 2020.  She was responded to on 5 February setting out leave discharged by the Complainant each year since her employment commenced.

The Respondent stated the Complainant’s contract of employment and the Annual Leave policy confirmed that her leave was 22 days p.a. Both her contract of employment and policy superseded any information advised in error, if so.

The Respondent stated that over the years the Complainant discharged in excess of her annual leave entitlement nearly every year. Her claim that she should not have to pay this back was unreasonable and unfair to her employee colleagues and her many colleagues across the Educational Institute. The majority of whom SITPU represent.

The Respondent stated that since the commencement of 2019, the Complainant had 22 days leave per year. The Complainant was not being treated any differently to any of her colleagues with regards to her annual leave.

The Respondent stated that the Complainant had a colleague who commenced employment on the same day, who was not party to this claim. However, they understood and accepted that the annual leave was 22 days each year and that prior to 1 January 2019 the four compulsory closure days at Christmas were worked into the published roster.

Section 13 (1) and (2) of Industrial Relations Act, 1990 states the below.

13.—(1) The Minister may from time to time appoint a person who shall be known as and is in this Act referred to as a rights commissioner to carry out the functions assigned to him by this section.

13. - (2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.

(3) (a) Subject to the provisions of this section, a rights commissioner shall investigate any trade dispute referred to him under subsection (2) of this section and shall, unless before doing so the dispute is settled—

(i) make a recommendation to the parties to the dispute setting forth his opinion on the merits of the dispute, and

(ii) notify the Court of the recommendation.

(b) A rights commissioner shall not investigate a trade dispute—

(i) if the Court has made a recommendation in relation to the dispute, or

(ii) if a party to the dispute notifies the commissioner in writing that he objects to the dispute being investigated by a rights commissioner.

The Complainant does have an obligation to exhaust the internal process before taking the matter to an external source. The Labour Court in Rec INT 1014 stated, “The Court is not prepared to insert itself into the procedural process in a situation where the dispute resolution procedures have been bypassed”.

The Complainant has fulfilled that obligation and therefore the Complainant is entitled to have the claim under the Industrial Relations Acts heard and a recommendation issued.  

The Complainant does have an obligation to exhaust the internal process before taking the matter to an external source. The Labour Court in Rec INT 1014 stated, “The Court is not prepared to insert itself into the procedural process in a situation where the dispute resolution procedures have been bypassed”.  The internal process was exhausted in this case.

From all evidence presented by the parties I find that the claim is not well founded based on the evidence provided; therefore, I recommend that the Respondent continue to allocate the discharge days into the roster to facilitate business requirements e.g. Xmas closure and same be accepted by the Complainant.