Complainant

Respondent

Parties

Jaroslaw  Koperski

Mount Juliet Estate

Representatives

Mairead Crosby

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-00041815-001

05/01/2021

The Complainant commenced employment with the Respondent on 18/8/2006. The Complainant stated on his Complaint Form that his grossly weekly pay is €940.50. The complaint concerns payment for annual leave accrued in respect of the year 2020.  

The Complainant outlined that every year he goes to Poland in around January or February and that is when he takes the bulk of his annual leave. The Complainant stated that he did not go to Poland in 2020 nor did he take any of his annual leave in 2020. All of his annual leave was therefore carried forward to 2021. Due to the impact of Covid-19 on the Respondent’s business, the Complainant received the Covid-19 pandemic unemployment payment in 2020.

The Complainant travelled to Poland on 6/1/2021 and returned to Ireland on 26/2/2021. The Complainant sought to be paid his full annual leave entitlement in respect of the year 2020 during this period - i.e. that he would be paid five days annual leave per week. This was refused by the Respondent who instead – during this period - paid the Complainant three annual leave days per week from the 2020 leave year. The Complainant outlined his fifteen years of loyal service with the Respondent and stated that when he availed of annual leave in the past he was always paid for the full five days/week. It is the position of the Complainant that the manner in which his 2020 annual leave was paid in January and February 2021 was unfair and breached the terms of the Organisation of Working Time Act [1997-2020].

At the outset the Respondent objected to the lack of particulars set out by the Complainant on the Complaint Form which it stated prejudiced its position. The Respondent stated that the onus was on the Complainant to specify exact reference periods, dates times etc when the alleged breach of the Organisation of Working Time Act [1997-2020] occurred and cited case law in this regard.

The Respondent outlined that it operates as a hotel and also outlined the impact of Covid-19 restrictions on its business in 2020 and 2021. In this regard, the Respondent stated that due to government announcements in relation to Covid-19, it temporarily ceased operations on 4/1/2021. At that time, the Respondent stated that it had to temporarily lay off staff and review its financial viability for the future. The Respondent stated that on site staffing levels dropped from 237 to an average of 65 per day during the period January - May 2021.

The Respondent stated that it put all staff – including the Complainant - on notice on 31 December 2020 that due to a reduction in its business, staffing levels would be affected and that it would have to consider all options including potential redeployment, reduced hours short time or temporary layoff. In that regard, the Complainant was informed on 31 December 2020 that whilst he would continue to be employed by the Respondent, he would be placed on temporary layoff effective from 4 January ‘21 until such time as the business could reopen to full capacity. The Respondent stated that in an effort to “soften the financial burden….” the Respondent agreed to pay out three days annual leave per week to any employee placed on layoff or short time and that the remaining two days could be claimed back from social welfare.

The Respondent stated that it’s annual leave year runs from the 1st  January to the 31st  December. The Respondent stated that the Complainant had an annual leave entitlement of 20 days as per his contract of employment and that by the end of December 2020, the Complainant had a balance of 22.41 days which included 1.41 days carried over from 2019.

In December 2020, the Respondent was made aware of the Complainant’s frustration and concerns with its proposal in relation to the payment of three annual leave days/week. The Respondent’s HR Manager and General Manager met with the Complainant who requested that all of his annual leave balance from 2020 to be paid to him in January/February 2021 as he could not claim from social welfare during his time in Poland. The Complainant also raised the matter with his Line Manager but did not initiate any grievance in accordance with company policy or exhaust the Respondent’s internal complaints/grievance procedures. Further, the Respondent stated that the Complainant declined to meet locally following his return from Poland in order to address his concerns and that he also declined an early return to work offer on a three day week basis. As a result, the Respondent stated that the Complainant only returned to work from layoff in a full time capacity on the 2nd June 2021.

The Respondent stated that commencing 13/1/21 to the week of 11/3/21 the Complainant was paid his full annual leave entitlement for the leave year 2020 on the basis of three days annual leave payment per week. The Complainant’s 2021 annual leave entitlement commenced accruing from the 2nd June 2021 when the Complainant returned after lay off. It is the position of the Respondent that it has not contravened the Organisation of Working Time Act [1997-2020], that it had no option in January 2021 but to lay off staff due to the effects of Covid-19 and that it could not facilitate all employees with payment of their 2020 leave in January 2021, due to the financial constraints it was operating under at the time. The Respondent maintained it acted in fair and reasonable manner in the circumstances and that all employees were treated similarly. Going forward the Respondent stated that it wished to revert to the usual custom and practice re the taking of annual leave.

The relevant legal provisions in relation to this matter are as follows:

Sections 19 and 20 of the Organisation of Working Time Act [1997-2020] which state:

19.— (1) ….. 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 …,

(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)…..

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 —

(i) within the leave year to which it relates,

(ii) with the consent of the employee, within the period of 6 months after the end of that leave year, or….....”

Section 11 of the Redundancy Payments Act [1967-2021] which states:

“11.— (1) Where……an employee’s employment ceases by reason of his employer’s being unable to provide the work for which the employee was employed to do, and—

(a) it is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent, and

(b) the employer gives notice to that effect to the employee prior to the cessation,

that cessation of employment shall be regarded for the purposes of this Act as lay-off”.

In the present case the Complainant has outlined that he wished to be paid for all of his 2020 annual leave in January/February 2021. From the Complainant’s perspective this was understandable given his previous pattern of taking annual leave at this time when he travelled to Poland. However, the provisions of Sections 19 and 20 of the Organisation of Working Time Act [1997-2020] are predicated on the granting of leave within a leave year and in this regard, the Complainant’s contract of employment specified that his leave year ran from the 1st January to the 31st December. Section 20 of the Organisation of Working Time Act [1997-2020] provides that the entitlement of the employer/Respondent to determine when annual leave is taken is subject to consultation, to the employer taking account of work/family balance and to the leave being granted “(i) within the leave year to which it relates, [or] (ii) with the consent of the employee, within the period of 6 months after the end of that leave year….....”. The Complainant has not raised any complaint or issue in relation to his non taking of annual leave in 2020 – ie the leave year in which the leave in question accrued. Payment in respect of the 2020 annual leave was granted within the period of six months after the leave year ended – ie by the 11th March 2021. I am of the view, that the requirement for “consent” at Section 20 (1)(c)(ii) is referable to a failure/refusal to grant annual leave within the leave year as stipulated at Section 20 (1)(c)(i). Accordingly, I consider that Section 20 (1)(c) of the Organisation of Working Time Act [1997-2020] did not entitle the Complainant to insist that all of his 2020 annual leave be paid in January and February 2021.

In addition to the foregoing, the Respondent has outlined the reasons why it laid off staff effective from the 4th January 2021. From the facts outlined and the Covid restrictions applicable at the time, I accept the Respondent’s position in this matter. In addition I note that the Complainant’s contract of employment provided at paragraph 21 for the lay off of staff and also stated “You will not be paid during the lay-off period”. Whilst the Respondent paid the Complainant his outstanding 2020 annual leave during the lay off period, I consider that lay off or cessation of employment is inconsistent with the granting or taking of paid annual leave during any such lay off period.

CA-00041815-001

For the reasons outlined I decide this complaint is not well founded.

Annual leave; Lay-off