Complainant

Respondent

Anonymised Parties

An Employee

A Contracting Firm

Representatives

none 

A&L Goodbody Solicitors A&L Goodbody Solicitors

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-00038772-001

16/07/2020

The Complainant has been employed by the Respondent since the 5th August 2019 and his gross monthly pay is €4.500. The Complaint Form was received by the WRC on the 16th July, 2020. The Complainant is seeking redress pursuant to the Organisation of Working Time Act [1997-2017] in respect of a failure to consult with him concerning the taking of annual leave. The Respondent denies the complaint.

The Complainant outlined that without agreement or consultation, he was forced to utilise two weeks of his annual leave during a period of Covid-19 shutdown. The period of shutdown during which he was required to take annual leave was from the 30th March until the 10th April 2020. The Complainant stated that the Respondent utilised this two weeks of annual leave to pay employees during the Covid-19 shutdown. The Complainant stated that requiring him to utilise annual leave in this manner was contrary to the Respondent’s existing policy whereby annual leave was booked with the Line Manager. The Complainant stated that he was back on site on the 10th April and worked from home during other lockdown periods.

The Complainant stated that he endeavoured to resolve the matter with the Respondent but without success. In that regard I was furnished with various emails exchanged between the parties. It is the position of the Complainant that his statutory entitlement to consultation was breached, that he was denied the opportunity to choose when he could take his annual leave and that this impacted on private arrangements. He stated the matter was one of principle rather than compensation. The Complainant maintains there were other options available to the Respondent such as unpaid leave or the Covid-19 pandemic unemployment payment (PUP).

The Respondent disputed and denied the Complainant’s claim. The Respondent maintained that its decision in requiring certain annual leave to be taken by the Complainant  between 30 March and 10 April 2020, was made in the context of the unprecedented and greatly uncertain initial period of government mandated shutdown due to Covid-19. The Respondent stated that due to the timing of the government’s notification, it could not comply with the requirement of section 20(1)(b) of the Organisation of Working Time Act [1997-2017] in terms of the provision of one months notice. The Respondent also maintained that no other employees had lodged proceedings in response to the requirement to take annual leave at this time.

The Respondent outlined the factual background including the communication to all employees of the 29th March 2020 which advised that due to the government announcement of the 27th March 2020 construction sites had to be closed. The letter to staff of the 29th March included the following:

“ To ensure we preserve as many jobs as possible, our primary focus at this stage is to ensure     that (Respondent) emerges from this period of uncertainty in the strongest position possible. With that in mind we had planned to implement a period of paid annual leave….. Due to the accelerated measures introduced by the Government at midnight on Friday, we are now bringing this period of paid annual leave forward to commence tomorrow, Monday 30 March.”

The Respondent stated that the Complainant suffered no financial loss and that while its construction sites were also closed between 14 and 20 April 2020 due to the ongoing Covid 19 restrictions, this period was not treated as annual leave and the Complainant was fully paid.  In all the circumstances, the Respondent maintained there was no basis to refund the two weeks annual leave.

The Respondent stated that it did not engage with the government’s temporary wage subsidy scheme until May 2020. It stated that it later placed a number of its workforce on temporary lay off but this did not include the Complainant. The Respondent stated that it also introduced a temporary salary reduction on 22 April 2020 but that staff including the Complainant, were fully reimbursed on 30 November 2020 in respect of any salary and pension reductions during 2020. In addition, the Respondent stated that it undertook to give employees seven additional paid days leave over the Christmas and New Year period of 2020.

It is the position of the Respondent that its action on this occasion was fair and reasonable and that requiring the Complainant to take two weeks fully paid annual leave was more preferable for him as opposed to requiring him to take unpaid leave or placing him on temporary layoff. The Respondent also stated that its decision was proportionate given that the Complainant’s total annual leave entitlement was 21 days and that by late March 2020 he had only taken one leave day. In this regard, the Respondent queried the difference between taking two weeks paid annual leave in March and two weeks unpaid leave at another time.

The Respondent stated that the imposition of the first Covid-19 shutdown resulted in huge uncertainty in the construction industry and as a result there was no work for the Complainant to perform. The Respondent maintained that its priority was to preserve and safeguard the business so that it could emerge from lockdown with a full workforce.

The Respondent recognised that requiring the Complainant to take annual leave at short notice was not an ideal situation, was ‘a technical breach’ and stated that it had not done this before and nor did it intend to utilise this approach in the future. Given the circumstances, the Respondent maintained that compensation should not be awarded and in this regard, the Respondent cited the Labour Court decision in Atlas Aluminium Limited V John Graham DWT 0627. The Respondent also took issue with the manner in which the complaint was framed under the Organisation of Working Time Act (1997-2017).

The subject matter of this complaint falls within the matters which may be pursued through the WRC pursuant section 27 of the Organisation of Working Time Act [1997-2017]. Having considered the evidence I am satisfied that whilst certain matters are in dispute between the parties such as the rationale for granting seven additional annual leave days at Christmas 2020, by and large, the key facts relating to this complaint are not in dispute – ie that the Complainant was required to take paid annual leave from the 30th March to the 10th April 2020.  

The Complainant has stated that the lack of consultation constituted a breach of his statutory entitlements under the Act whilst the Respondent has argued that it acted in a reasonable, fair and proportionate manner in response to the government shutdown of construction sites on the 27th March 2020. Whilst the Respondent has conceded a technical breach of the Act, it has stated that this does not merit an award of compensation.

Section 20 of the Organisation of Working Time Act [1997-2017] which stipulates the times and pay for annual leave states as follows:

“Section 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………”

It is clear from the foregoing that the timing of annual leave is determined by the employer but this is subject to the matters set out at Section 20(1) which include the requirement to engage in prior consultation with the employee concerned. In this regard, I also note that the Complainant’s contract of employment provided for holidays to be taken in line with the industry policy “unless otherwise agreed with on-site management”.  Having considered all the evidence and submissions including the Labour Court decision in Atlas Aluminium Ltd V John Graham [DWT0627], I am satisfied that the Complainant’s statutory entitlement to be consulted in relation to the taking of his annual leave was breached.

CA-00038772-001

For the reasons outlined, this complaint is well founded.  Section 27(3) of the Organisation of Working Time Act [1997-2017] sets out the redress options. In deciding on the matter of redress, I wish to clarify that I accept the bona fides of the Respondent in its effort to maintain a viable business in the face of mandatory shutdowns. Notwithstanding, given that the Covid-19 pandemic has had significant and far reaching effects on employers and employees alike, I am of the view that the Respondent continued to be obligated to comply with the provisions of the Act – and particularly when the period of required leave constituted almost half of the Complainant’s total allotted annual leave.  As emerged from the evidence, there were other options available which were later utilised by the Respondent – such as working from home, availing of the temporary wage subsidy scheme, unpaid leave or lay-off. Furthermore, had the Complainant been consulted he may very well have agreed to take some annual leave but from the contemporaneous emails it is clear to me that from the outset, the Complainant raised his objections to the lack of consultation.

Having regard to all the evidence and submissions, I award the Complainant €1,500 compensation for the breach which occurred which I consider just and equitable in all the circumstances.  

I also require the Respondent to comply with the provisions of Section 20(1)(b) of the Organisation of Working Time Act [1997-2017] in the future and I welcome, the Respondent’s assurance at the adjudication hearing that this will occur.

Taking of annual leave