Worker

Employer

Anonymised Parties

A Worker

An Employer

Representatives

Sean Heading Connect Trade Union

Janice Kavanagh Inhouse Legal Services

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

31/01/2022

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The worker was employed with the employer for 48 years before he took retirement.

Over the course of his employment, the worker built up 206 annual leave days.  The worker stated that he always took his statutory annual leave allowance.  The worker submitted that in 1991 he made a mistake and that his employer was left paying compensation out to a customer as a result of this mistake.

The worker stated that in order to pay the employer back he decided that he would forego 5 days of annual leave in 1991 and 1992.  Thereafter he just accrued five days per year for almost every year of his employment.

The worker stated that he was originally due to retire on 29 May 2021 but that when the law was changed regarding state pension entitlements over the course of his employment, this date changed to 29 May 2022.  The worker stated that at the time of his retirement, there remained 129 days of overtime outstanding.

The worker submitted that management should have ensured that he took his leave and that they should have ensured that there was a program in place to ensure that he worked his leave down prior to retirement.

The worker is seeking a recommendation that he be reimbursed for the 129 days of outstanding annual leave that remained as at the date of his retirement.

The employer submitted that it has a policy on annual leave which notes that all employees should take their annual leave in its entirety during the leave year.  The policy notes that where statutory annual leave has not been taken, a worker may apply to carry over such leave, however this leave must be taken within the first six months of the new leave year.

The employer submitted that contractual annual leave over and above the statutory level must be taken within the leave year and can not be carried over.

The employer submitted that the worker was written to in or around January 2021 outlining the remaining annual leave that he had accrued.  It suggested that the worker take his leave on a continuous basis from the summer period and work down his accrued leave in that manner.

The employer submitted that this course of action was not accepted by the worker and correspondence continued thereafter in an effort to encourage the worker to use up his accrued leave.  It was submitted that at all times it was pointed out to the worker that there was a ‘use it or lose it’ policy in place in terms of him losing any outstanding contractual leave allowance as at his retirement.

The employer submitted that the worker chose to retire in February but even at that point could have worked down a further 50 days by remaining employed but on leave up to the mandatory retirement date.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

The worker had accrued 129 days of annual leave over the course of his career.  However, he had always taken his statutory leave allowance.  The employer sought to engage with the worker repeatedly by email to encourage him to take his leave before he retired.

These efforts even went so far as to indicating to the worker that he should postpone his retirement date, remain employed while being out on leave at the same time.  There was ongoing correspondence with the worker in this regard.  His representative suggested that the employer should have had a face-to-face meeting with the worker to ensure that he took his leave.

The suggestion was made to the worker in writing in January that he should take continuous leave starting from June 2021.  However, the worker noted that he probably couldn’t have done this as he was essential to the union progressing discussions with the worker regarding separate matters.

The union confirmed that it had about 1000 members in the employer’s service.  It was also confirmed that it had about 32 staff representatives.  It was further confirmed that the worker is currently and always has been a paid-up member.

Having considered the written and oral submissions, I note the following:

The worker was offered a way in which to work down his annual leave balance prior to his retirement.  The worker chose not to do so.

The worker was involved in negotiations as part of a team with the employer.  There was nothing precluding him from continuing to do so as an employee while on extended contractual leave or even as a retired member of the union.

The written notifications to the worker are a valid form of communication.

I conclude that the worker was provided with ample opportunity to draw down his contractual leave prior to his retirement but chose not to do so. I also conclude that the worker had the opportunity to retire at a later stage while using up some or all of his leave entitlement but specifically chose not to do so.

I note that the employer indicated to the worker that he was not entitled to appeal a grievance regarding this matter as he was no longer employed by the employer.  Although this is not the matter which was submitted in the claim from, I note that this avenue of appeal was not open to the worker.

IR dispute – contractual non statutory annual leave – untaken leave - recommendation