Complainant

Respondent

Parties

Izabela  Staneczek

The O'hare Group

Representatives

  Appeared In Person

 No Appearance by or on behalf of the Respondent

Act

Complaint 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-00046650-001

12/10/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997(withdrawn at hearing, duplicate claim)

CA-00046650-002

12/10/2021

On 12 October 2021, the WRC received two complaints from the Complainant, who had worked as Deli Assistant from May 2019. She resigned her position on 11 October 2021

The parties were invited to an in-person hearing scheduled for 23 May 2022. Shortly before the hearing, the Respondent sought a postponement, which was refused.

There was no appearance by or on behalf of the Respondent at hearing.

The Complainant represented her own case and presented alone at hearing.

The Complainant accepted that CA-00046650-002 was in fact a duplicate claim and withdrew the claim at hearing.

The Complainant outlined that she had worked as a Deli Assistant on a 24 hr per week basis from May 4, 2019, to her medically advised sick leave on 16 December 2019.

She received a gross pay of €288.75 per week. The Complainant told the hearing that she has been on illness benefit from December 2019 to the present day.

The Complainant has claimed unpaid annual leave from 16 December 2019 to the date of her resignation of 11 October 2021. Efforts to secure this money directly from her former employer had been unsuccessful and she referred her claim to WRC on 12 October 2021.

In her evidence, under oath, the Complainant outlined that she was a single mother with four children. She had received a pay rise early in her employment and had requested a contract of employment at that time but was refused.

On 16 December 2019, the Complainant advised the Respondent of her sick leave due to back pain. She submitted GP Medical certs throughout her absence on a monthly basis. She went on to have a baby in November 2020 and did not return to work.

The Complainant confirmed that she had received payment of €173 for public holidays in October 2021, which she understood covered two public holidays.

The Complainant did not remember when the annual leave commenced in either January or April at the employment. She did recall being paid for two weeks holidays at the end of November 2019, but she had worked this time.

She did not receive a final payment slip to coincide with her termination of employment date.

The Complainant submitted that the Respondent had refused to pay her for annual leave accrued during sick leave on the termination of her employment. On 12 October,2021, she had been informed by the Respondent Accountant, by email, that they had no liability to pay her.

The Complainant exhibited payslips which governed the periods 16 August 30 October and 29 November 2019 

16 August 2019

The Complainant also exhibited some interparty electronic mail with the Respondent which reflected a request for a contract in April 2021, notice of resignation and the request for unused holidays at 168 hrs on termination of employment.

She exhibited a response dated 13 April from the Respondent

…….

You were out sick for the last few years and did not have enough hours worked out prior to any of the bank holidays you mentioned. Due to this, I am sorry to say that you are not entitled to get any of this bank holiday payment from the company

13 April 2021

On 11 October 2021, the Complainant sought 168 hours of unused holidays 2020-2021

Four Weeks @96 hrs in 2020

Three Weeks @ 72 hrs in 2021     cumulative €1,764 .00

and public holidays during her maternity benefit payment time zone.

The Complainant exhibited a text dated 12 October 2021 from the respondent accountant which stated:

As per our advisor you are not entitled for any of the payment you have mentioned in your email.

The Respondent was placed on notice of the claims by WRC on 20 October,2021.

On 8 November 2021, the Respondent responded to the WRC in writing

1.       The Respondent confirmed the complainant had worked 4 May 2019 to 15 December 2019, on average 24 hrs per week.

2.       Holidays were calculated on 8% of hours worked in the leave year

3.       All public holidays were processed in 2019 and 2020. Holidays were paid in 2019.

4.       It was the Respondents position that the complainant had not accrued any holidays in 2020 and 2021

I am satisfied that the Respondent was properly on notice of the date, time, and location of the hearing on 23 May last. This is confirmed by means of the postponement made and refused.

I have to conclude that the Respondent chose not to attend this hearing and in so doing, I was unable to obtain records maintained over a three-year period in accordance with Section 25 of the Organisation of Working Time Act, 1997.

25. Records

(1) An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this Act [and, where applicable, the Activities of Doctors in Training Regulations] are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making.

There was no appearance by or on behalf of the Respondent at hearing.

I have been requested to inquire into the Complainants claim for annual leave accumulated during certified sick leave.

The Complainant submitted that she had submitted sick certs on a four-weekly basis during her absence from December 2019 to her resignation date of 11 October 2021.

She had not retained or exhibited copies of these certificates, but her evidence was given under oath and was not contested. she also declared that she had received statutory illness benefit throughout this period.

I think it important that I set out the law in relation to accumulating annual leave during sick leave.

On August 1, 2015, the Minister for Business and Employment, Ged Nash announced that workers would be able to accrue annual leave when they are on long term sick leave. Workers could carry such accrued leave for a period of 15 months after the leave year in question.

Section 19 of the 1997 Act reflects article 7 of Directive 2003/88 by outlining a worker’s entitlement to annual leave

1 4 working weeks where 1, 365 hours or more are worked

Or

2 1/3 working week for each month in a leave year in which employee works 117 hrs

Or 8 % of hours worked

Section 86(1) of the Workplace Relations Act, 2015 amended Section 19 of the Organisation of Working Time Act, 1997

86. (1) The Organisation of Working Time Act 1997 is amended—

(a) in section 19, by the insertion of the following subsection:

“(1A) For the purposes of this section, a day that an employee was absent from work due to illness shall, if the employee provided to his or her employer a certificate of a registered medical practitioner in respect of that illness, be deemed to be a day on which the employee was—

(a) at his or her place of work or at his or her employer’s disposal, and

(b) carrying on or performing the activities or duties of his or her work.”,

(b) in section 20, by the substitution of the following paragraph for paragraph (c) of subsection (1):

“(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.”,

The leave can be carried forward for a maximum period of 15 months from the end of the leave year.

The reference period for annual leave is leave year beginning April 1.

In a series of rulings relating to the interpretation of the annual leave provisions of the Working Time Directive, the Court of Justice of the European Union (CJEU), starting with the Schultz-Hoff/Stringer cases (2009), has ruled that employees can accrue annual leave while out on sick leave. In the KHS case (2011), the CJEU ruled that national law could put a cap on the unlimited accrual of annual leave during successive years of absence on sick leave, with the Court accepting on the facts of that case that a 15 month carry over period was not contrary to the Working Time Directive. (WRC website)

Section 20(1) (c) of the Act, as amended, provides that where the employee is unable to take annual leave within the leave year because of certified illness the employee may take such leave within 15 months of the expiry of the leave year.

I come now to the provisions of the Act applicable to the complainant’s termination of employment on 11 October 2021. As the Complainant did not return to work before leaving her position on 11 October 2021

23. Compensation on cesser of employment

[(1)

(a) Where—

(i) an employee ceases to be employed, and

(ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee,

the employee, shall as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or he would have received had he or she been granted that annual leave.

(b) 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

(………

(3) If an employee ceases to be employed by reason of his or her death, any compensation payable under this section shall be paid to the personal representative of the employee.

(……….

(5) In this section “appropriate daily rate” and “normal weekly rate” mean, respectively, the appropriate daily rate of the employee concerned's pay and the normal weekly rate of the employee concerned's pay determined in accordance with regulations made by the Minister for the purposes of this section.

From my careful consideration of the facts of the case, which were not contested at hearing, the Complainant is entitled to have her annual leave calculated on cessation in accordance with Section 23(1) (b)(iii) of the Act

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,

April 1, 2020 -March 31, 2021, at 8% of 24 hrs x 52 weeks @ €10.50 ph.(detailed on pay slip ) S.23(5) normal weekly rate , OWT Regulations .

. =€1,048.32

April 1, 2021 -March 31, 2022, 8% of   24 hrs x 22 weeks @ €10.50 per hour

 = €443.52

Total € 1,491.84

Section 27 of the Organisation of Working Time Act, 1997,

(3) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely—

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the employee's employment.

In Cementation Skanska v Carroll, WTC 0338, the Labour Court drew from the European jurisprudence in Von Colson and Kamann v Land Nordhein -Westfalen [1984] ECR 1891, which emphasised the need to consider a targeted deterrence against future infractions side by side with a consideration of economic loss.

I have reflected on this and find that the Respondent denied the complainant the provisions of the amended legislation on annual leave during sick leave. As an employer, they are obliged to keep abreast of employment law developments. Section 86(1) of the Workplace Relations Act, 2015 which amended S 19 of the Organisation of Working Time Act, 1997, is now very settled law and ought to have been considered by the Respondent and explained to the Complainant, whom, I noted was denied a contract of employment, both within the statutory period and after she requested it in April 2021.

The stated purpose of the Working Time Directive was to enhance the safety and welfare of workers and to provide for greater compatibility between work and family life.

By omitting to consider the provisions of S23 on termination of employment, I have found that the Respondent deviated widely from these provisions when they denied the accrued annual leave through sick leave.

I appreciate that the accrued leave comes into being through a continuum of submitted medical certs and I have taken the complainants evidence that she provided this key and essential requirement. This was not contested.

I have found the claim to be well founded.

I have no scope to consider public holidays as the complainant was absent on sick leave during the cognisable period of the claim. Any public holidays during her maternity leave fell outside the cognisable period allowed.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 27 of the Organisation of Working Time Act, 1997, requires that I make a decision in relation to the complaint in accordance with Section 19 and 20 of that Act.

I have found the claim well founded.

I order the Respondent to familiarise themselves with the legislative developments of August 2015 and apply the amended legislation of “carry over period of 15 months “in the workplace immediately.

I also order the respondent to pay the complainant €2,491.84 (€1491.84 plus €1,000) as just and equitable compensation in respect of the liability for accrued annual leave calculated in accordance with section 23(1)(b) (iii) of the Act to include a clause on deterrence. Von Colson applied.

Annual Leave during sick leave