Complainant

Respondent

Parties

Ronan  Mc Ardle

Cityjet

Representatives

  Self

 Company Management.

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00039306-001

21/08/2020

The Complainant was employed by the Respondent company from 18th July 2005 until 15th July 2020 at which time his position was made Redundant.

This complaint was received by the Workplace Relations Commission on 21st August 2020.

Upon being made redundant, the Complainant contends that he was entitled to 36.5 days annual leave, confirmed by the company. The company decided to only pay the Complainant for 29 of these days. This left a deficit of 7.5 days @ €327.14 per day unpaid, a total of €2,453.55 unpaid. (€327.14 is the company's calculation with which the Complainant agrees with).

The Complainant has confirmation of his 36.5-day balance and the calculation applied from the company. He also has an email from his manager at that time, requesting to not take leave over approximately a two-month period due staff being on a training course.

The Complainant has raised this complaint after first consulting with the HR department in Cityjet, seeking his owed holiday pay upon redundancy. The company replied that it was only paying the 29 days and not the full entitlement of 36.5. The Complainant has email communication supporting this.

Preliminary Issue.

1.      The Complainant has issued a claim pursuant to Section 39 of the Redundancy Payments Act, 1967 (the “1967 Act”) and alleges in his specific complaint that the Respondent did not provide the correct redundancy payment upon making him redundant.

2.      The Complainant has failed to particularise any alleged incorrectness of the redundancy payment and, further, has failed to set out any case in support of a claim under Section 39 of the 1967 Act.

3.      In the complaint form, the Complainant raises issue with the Respondent’s calculation of his outstanding annual leave and holiday pay entitlements which falls outside the scope of the 1967 Act.

4.      In accordance with the redress provisions under the 1967 Act, the Respondent respectfully submits that the Adjudicator must find this complaint not well founded.

Facts

Without prejudice to the foregoing preliminary point, the Complainant was placed on temporary layoff from 1st April 2020 and following this, subsequently made redundant on 15th July 2020. During this time, the Respondent was at the height of what was then the largest company examinership in recent memory. The COVID 19 crisis was unprecedented. The Respondent’s entire fleet of aircraft had been grounded. 700 employees across the CityJet group were made redundant.

In an excel spreadsheet detailing the calculation of outstanding payments due to the Complainant upon the cessation of employment (as already provided in the Complainant’s supporting documentation), a payment of €10,468.69 is detailed to cover annual leave entitlements.

 This figure of €10,468.69 calculated based on an amount of €327.14 per day multiplied by thirty-two (32) days. The figure of thirty-two days (32) comprises of an allowance of twenty-nine (29) days for one full year’s annual leave entitlement plus an additional three (3) days for bank holidays occurring between 1st April 2020 to 15th July 2020.

The Complainant contends that there is a deficit of seven and a half (7.5) annual leave days left unpaid.

 Under the Complainant’s contract of employment and in accordance with the Organisation of Working Time Act 1997 (the “1997 Act”), the Complainant was entitled to twenty-nine (29) annual leave days per annum which included the entitlement to all Public Holidays recognised in Ireland.

Annual leave entitlement is calculated pursuant to Section 19 of the 1997 Act. The entitlement is based on hours actually worked and, thus, time spent on lay-off does not accrue annual leave entitlement, save as provided for in Section 21 of the 1997 Act.

The Complainant’s employment terminated on 15th July 2020. Therefore, he did not accrue annual leave or public holiday entitlements after that date.

Applicable law

 Under Section 23 of the 1997 Act, upon cesser of employment, an employee is entitled to compensation for loss of annual leave in respect of the relevant period.

Section 23 (1) (b) provides:

In this subsection ‘relevant period’ means—

(i) in relation to a cessation of employment of an employee to whom subparagraph (i) of paragraph (c) of subsection (1) of section 20 applies, the current leave year,

(ii) in relation to a cessation of employment of an employee to whom subparagraph (ii) of the said paragraph (c) applies, that occurs during the first 6 months of the current leave year—

(I) the current leave year, and

(II) the leave year immediately preceding the current leave year,

(iii) in relation to a cessation of employment of an employee to whom subparagraph (iii) of the said paragraph (c) applies, that occurs during the first 12 months of the period of 15 months referred to in the said subparagraph (iii) —

(I) the current leave year, and

(II) the leave year immediately preceding the current leave year,

or

(iv) in relation to a cessation of employment of an employee to whom subparagraph (iii) of the said paragraph (c) applies that occurs during the final 3 months of the period of 15 months referred to in the said subparagraph (iii) —

(I) the current leave year, and

(II) the 2 leave years immediately preceding the current leave year.

Section 20 (1) provides:

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) if 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

(iii) where the employee –

(I) is, due to illness, unable to take all or any part of his or her annual leave during that leave year or the period specified in subparagraph (ii), and

(II) has provided a certificate of a registered medical practitioner in respect of that illness to his or her employer, within the period of 15 months after the end of that leave year.

Under the 1997 Act, a “leave year” is defined as a year beginning on any 1st day of April.

Application of the Law

As per the 1997 Act, the leave year begins on 1st April each year. In adopting the most favourable position to the Complainant and in accordance with Section 23 (1) (b) (ii) and Section 20 (1) (c) (ii) of the 1997 Act, the ‘relevant period’ for the purpose of calculating compensation for loss of annual leave, means the period beginning 1st April 2019 to 15th July 2021 (being the preceding leave year and the applicable portion of the current leave year).

 For the period 1st April 2019 to 31st March 2020, the Complainant was entitled to twenty-nine (29) annual leave days (9 of which were public holidays) as per his contract of employment.

For the leave year beginning on 1st April 2020, the Complainant was on temporary layoff until 15th July 2020, at which time he was subsequently made redundant. The Complainant did not accrue annual leave entitlements during this period of lay-off, however, he was entitled to a further three (3) days to account for the public holidays during these dates.

 This amounts to a total entitlement of thirty-two (32) days in respect of which the Complainant was due compensation upon the cessation of his employment.

Summary

The Complainant has failed to establish a claim in accordance with Section 39 of the 1967 Act and further, any claim is relation to compensation for the loss of annual leave falls outside the scope of this Act.

Without prejudice to the foregoing point, in light of the facts set out above, upon cesser of the Complainant’s employment, the Complainant was paid compensation in respect of thirty-two (32) days in accordance with the 1997 Act (i.e., what he was entitled to).

The Complainant is not entitled in law to any further compensation in respect of annual leave.

Preliminary Issue.

Section 39 of the Organisation of Working Time Act, 1997 reads as follows:

39.(1) In this section “relevant authority “means a rights commissioner, the Employment Appeals Tribunal or the Labour Court.

39.(2) A decision (by whatever name called) of a relevant authority under this Act or an enactment referred to in the table to this subsection that does not correctly the name of the employer concerned or any other material particular may, on application being made in that behalf to the authority by any party concerned, be mended by the authority so as to state correctly the name of the employer concerned or other material particular.

Pursuant to clause 39 of the Organisation of Working Time Act 1997 I am considering this complaint as being heard under the Organisation of Working Time Act and not the Redundancy Payments Act 1967 as submitted.

CA – 00039306 – 001.

Upon being made redundant, the Complainant contends that he was entitled to 36.5 days annual leave, confirmed by the company. The company decided to only pay the Complainant for 29 of these days. This left a deficit of 7.5 days @ €327.14 per day unpaid, a total of €2,453.55 unpaid.

The Complainant produced a print out from the Respondent’s ACL /AMOS system showing an annual leave balance of 36.5 days. This figure was confirmed by email from the Respondent Human Resources Department on the day of the hearing.

At hearing the Respondent representative’s submission provides a good explanation on how annual leave should be calculated however in my opinion no carryover of untaken leave has been taken into consideration.

Employers may introduce a “take them or lose them” approach in relation to annual leave carry overs but cannot then inform employees that they cannot avail of leave during a two month period due to staff attending a training programme.

After consideration I decide that the complaint is well founded and the Complainant is due a gross payment of €2,453.55 representing the value of 7.5 days of annual leave.

This payment should be made to the Complainant within 42 days from the date of this decision.

As outlined above.

Payment for unused annual leave on cessation of employment.