Complainant

Respondent

Anonymised Parties

Social Care Worker

Social Services Provider

Representatives

none 

Aislin Reid  IBEC

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-00035003-001

03/03/2020

The Complainant commenced employment as a Social Care Worker with the Respondent on 1 February 2013 and resigned from the employment on 27 September 2019. Her weekly salary was €881 gross per 39-hour week; net €631. The Complainant submits that she did not receive her paid annual leave entitlement upon cessation of employment. The Respondent refutes the complaint and asserts that the Complainant’s full statutory leave entitlement was paid.

The Complainant submits that there are two streams of leave within the Respondent organisation - annual leave and time owed. The Complainant submits that it is policy with the Respondent to take time owed built up prior to taking annual leave. The Complainant submits that the approach she adopted and all time records showed that this time was taken as annual leave therefore, the Complainant submits, the time taken from her was a double deduction. The Complainant submits that if the Respondent wishes to account for this as annual leave, she has no issue with it, but she is seeking payment today for time owed.

The Complainant submits that payments outstanding since 2017 amounts to 148.45 hours. She received 77.9 hours after representations and checks on the hours accrued were made. She submits that she is now owed 70.66 hours as time in lieu hours.   

The Respondent’s submits that the Complainant’s full statutory leave entitlement for 2018/2019 was paid. The Complainant had 27 contractual days leave per year. Shared screen data was exhibited to show that the Complainant had 15 days statutory leave entitlement for annual leave year 2018/2019. The Respondent submits that the Complainant took 12 days in 2019/2020 and that she was paid the remainder on termination of her employment. The Respondent contends that the Complainant not only received her statutory entitlement, but always received her contractual entitlement which was 27 days as distinct from just 20.   

The Respondent contends that any claim going back to 2017 is not for adjudication as the Adjudicator can only look at claims in the six months prior to the submission of the complaint. Notwithstanding the Respondent’s position on the nature and the limitation of the complaint, the Respondent submits that the Complainant has acknowledged significant errors in her calculation of monies owed. The Respondent contends that a detailed examination of records shows that the Complainant is owed no monies neither was there a ‘double deduction’ The Respondent refers to shared screen data on this point.

 The Respondent submits that the complaint here is solely one of not receiving statutory annual leave. The Respondent further argues that the Adjudicator can only rule on statutory leave and therefore as this was fully paid the Complainant’s claim is without merit.

Section 19of the Organisation of Working Time Act 1997, as amended, (the Act) gives direction on entitlement to annual leave.

(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.

The Complainant submits that the Respondent never paid her ‘time owed leave’ hours (hours in lieu for overtime worked). The dispute about ‘time-off in lieu’ is a dispute outside my remit in this case. Such a case is a contractual dispute and not an issue to be adjudicated upon at this hearing. The Respondent, without prejudice to its original position, disputes that there are monies owed to the Complainant and submits that the Complainant herself has admitted to substantial errors in her calculations.  My role here is to decide whether the Complainant received her statutory annual leave entitlement, under the Act, for the statutory period 2019/2020. The Complainant gave evidence that she had taken her full statutory entitlement in 2018/2019.  It is common case that the Complainant had 15 days statutory annual leave entitlement for 2019/2020, based on the time she worked until her resignation in September 2019. The Complainant, in her own evidence, said she had already taken 12 days leave in 2019/2020. The Complainant accepts that she was paid for three days leave upon termination of employment. Ultimately, after hearing all the evidence it is clear to me that there was no conflict on the receipt of statutory annual leave.  Based on the evidence I have heard, the only conclusion I can come to is that the Complainant’s claim is based on a contested claim of ‘time off in lieu leave’ which is manifestly an added contractual entitlement which cannot be at issue here under the Act. I find therefore that the complaint was not well founded.  

CA-00035003-001: I find that the complaint was  not well founded.

Organisation of Working Time Act 1997, Annual Leave.