Complainant

Respondent

Parties

Lee  Stephenson

Donegal Youth Service

Representatives

Kevin McKinney SIPTU

Sinead Finnerty Peninsula

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-00040074-001

25/09/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act 1994

CA-00040074-002

25/09/2020

The Complainant has worked for the Respondent since 2001. By virtue of a written employment contract (signed on 7 April 2004) the Complainant is obliged to work a 35-hour working week and is entitled to 25 day annual leave days with 3 additional days, to reflect long service (giving him an annual entitlement of 28 leave days).

Following a review of the Respondent contracts by the funding Department (Department of Social Protection – DEASP) the Respondent was directed by DEASP that all CE worker contracts were required to amend their annual leave to statutory holidays (20 days) only and furthermore that all CE workers were required to work a 39 hour working week.

The Respondent informed the Complainant of this and he responded that he would be prepared to increase his working week to 39 hours but that he was not prepared to waive his contractually agreed leave entitlement of 28 days.

The Respondent contacted DEASP to inform them that the Complainant had agreed to increase his working hours but that he was not prepared to take less holidays. The Respondent explained that the Complainant was central to the operation of the scheme and that his contract expressly provides an entitlement to 28 days, given his length of service. They attempted to negotiate different ways to resolve the matter but no resolution could be found.

The response by DEASP was that CE workers were to be paid the same nationally and that the Complainant’s contractual terms were required to be regularised. They informed the Respondent that if the Complainant’s contract was not altered that the Respondent would risk losing their funding for the scheme.

The Complainant asserted that he and his employer had agreed in 2004 – as recorded in his signed contract – that he would have 25 holidays plus 1 additional day for each five-year increment, which lead to a total annual leave entitlement of, in his case, 28 days. He was prepared to increase his working time to do 39 working hours per week but he was not prepared to allow his contract to be unilaterally amended to give him only 20 days of annual leave.

The Respondent accepted that the Complainant’s contract provided him with  28 annual leave days per year, however they were unable to change this without the agreement of the funding department and DEASP had made it clear that they were not prepared to provide the Complainant with anything in addition to the statutory leave of 20 days. Furthermore, the funding of the scheme might be prejudiced if they did not regularise his terms and conditions. They were defending the complaint as they could not prejudice the scheme.

This complaint was brought under the Organisation of Working Time Act 1997 however as part of my investigation into the matter, it became my view that relief was not available under Organisation of Working Time Act 1997 given that statutory annual leave was not being sought.

As this is a complaint in which the correct Respondent has been pursued, but relief under the correct enactment has not, an amendment of the complaint under section 39 (4) of the Organisation of Working Time Act 1997 does not arise.

However as part of my duty to inquire into the complaint under section 41 (5) of the Workplace Relations Act 2015 I am satisfied that the correct enactment under which this complaint should have been pursued is the Terms of Employment (Information) Act 1994 and that in order for me to be able to make a decision and select an appropriate redress to the complaint, that under section 41 (5) (iii) of the Workplace Relations Act 2015 I have discretion to add a complaint to an existing complaint and in this case the additional complaint is under the Terms of Employment (Information) Act 1994.

I canvassed with both parties my intention to amend the complaint to include the additional complaint and no objection to this was made by either party.

Arising from this the complaint under the Organisation of Working Time Act 1997, CA-00040074-001,  was withdrawn.

In relation to CA-00040074-002 I find that the Complainant enjoyed an employment contract in writing with the Respondent. I say that within that the Respondent agreed to provide the Complainant with 25 days annual leave together with 3 additional annual leave days to take account of long service. I say that the employer is not permitted to unilaterally amend that agreement to reduce annual leave by 8 days, in circumstances where the Complainant had been working on this basis for twenty years – indeed as all the other Respondent employees continue to do.

Relying on my discretion under section 7 of the Terms of Employment (Information) Act 1994 I apply subsection 2 (a) and (b) of section 7 and  I declare that the complaint is well founded and I confirm the particulars (in relation to annual leave)  as is set out in the Complainant’s contract of employment which was signed by both parties on 7 April 2004.

CA-00040074-001  was withdrawn at hearing

CA-00040074-002 . I find this complaint to be well founded and I confirm the particulars in relation to annual leave entitlement (of 28 days) as contained or referred to in his employment contract dated 7 April 2004.

Amendment of complaint to include complaint under Terms of Employment (Information) Act 1994.