adj-00037285

Complainant

Respondent

Parties

Aidan  Meehan

St James Hospital

Representatives

  Self-represented.

Peter Flood , Ibec.

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-00048588-001

11/02/2022

The Complainant was employed by the Respondent as Medical Physicist from September 2017 until April 2022. 

This complaint was received by the Workplace Relations Commission on 11th February 2022.

At the hearing of the complaint the Complainant represented himself and the Respondent was represented by Mr. Peter Flood from Ibec.

The complaint relates to the Complainant’s employer denying him Covid leave to cover a period of absence when he was unable to work because he was a close contact of a positive household case.

The Complainant feels that it was unfair that he had to take the days in question as annual leave.

In July 2021 the Complainant took annual leave to travel to Spain with his pregnant wife and young child. The Complainant’s wife is a Spanish national and they had gone to Spain to allow her attendance at a number of obstetrical appointments. It is the Complainant’s opinion that this was essential travel and he felt he had to accompany his wife as it would not have been possible for her to travel with a young child without him.

When preparing to return to Ireland the Complainant’s wife tested positive for Covid. The Complainant, with his family had to remain in Spain for a period of isolation.

The Complainant contends that his employer feels that this was not an essential reason for the Complainant to travel in the first place and so any extra absence that was caused is the Complainant’s own problem and he would have to take annual leave if he wished to be paid for the period in question (4 days).

The Complainant provided copies of flight details and medical appointments to his employer.

The Complainant feels that it was extremely unreasonable for the Respondent to state “it is not unreasonable to assume that the trip to Spain was a holiday which incorporated some medical appointments for your wife”.

The Complainant has found the whole experience very confusing and at times stressful. The Complainant states that he would not have taken such issue if the process was more transparent and based on clear guidance, but it seems to be very unclear and open to interpretation whether travel is deemed essential or not.

The Complainant contends that hospital advice to employees at the time was not to come to work if a household contact of a positive case.

Background.

The Complainant took 2 weeks of annual leave from July 2nd to 18th 2021 to travel to Spain with his wife and young child.

Whilst in Spain his wife tested positive for Covid on the day before they were due to return to Ireland. As he (the Complainant) was a close contact he chose not to return to Ireland.

The HSE policy at that time, which was followed by the Respondent, in relation to health service staff travelling overseas was “Government advice to avoid non-essential travel remains in place until July 18, 2021”.

Travelling abroad on annual leave is not essential travel.

This HSE HR Circular states:

“Employees should be aware of the testing and quarantine requirements in place at the time of travel, both for their intended destination and on return to Ireland. Responsibility to provide for the period of quarantine arising from travel overseas is a matter for each individual employee unless they fall into the very limited exemption categories as outlined here”.

As the Complainant opted to travel abroad then he had no entitlement to SLWP. (Special Leave With Pay).

The Complainant did not test positive for COVID.

Covid 19 Special Leave with Pay (SLWP).

The rules for entitlement to SLWP at the time the Complainant went on annual leave are set out in HSE HR Circular 025/2021 (a copy of which was presented at the hearing).

The SLWP rules are as follows:

“SLWP for Covid 19 will only apply when an employee is advised to self-isolate and is displaying symptoms of Covid 19 or had a positive test ……. SLWP does not apply to employees who are restricting their movements or are self-isolating due to being a close contact of a variant of concern, …..”

Decision to reject the request for SLWP.

The decision not to approve SLWP for the Complainant was made by Ms MR (HR).

In her decision she refers to the fact that the Complainant’s journey overseas was for annual leave purposes and was not therefore essential travel.

The Complainant was offered the options of taking paid annual leave, unpaid annual leave or parental leave if available.

Complainant’s Appeal.

The Complainant appealed the Respondent’s decision to the Employee Relations Manager.

The appeal was rejected on the grounds that he was on annual leave and that this does not constitute essential travel. It was suggested that the Complainant use either annual leave or unpaid leave for the 4 days in question.

The Law.

Section 19 of the Organisation of Working Time Act, 1997 clearly states the following:

“An employee shall be entitled to paid annual leave equal to

(a)    4 working weeks in a leave year in which he or she works at least 1,365 hours……

As the Complainant received 27.5 days annual leave in the leave year (April 2021 to March 2022) then he has received more his statutory entitlement and therefore has no entitlement to any further annual leave under the Act.

Hospital Case.

·       No breach of the Act occurred in this case – the Complainant received more than 4 working weeks’ annual leave in the leave year.

·       The Respondent never required the Complainant to take the 4 days in dispute as annual leave.

·       The SLWP scheme applies across the public sector. The rules make it very clear that no entitlement exists to the SLWP in this case.

·       Other employees not able to travel back to Ireland had to take unpaid leave or annual leave if they wished to be paid.

The representative for the Respondent has quoted Section 19 of the Organisation of Working Time Act, 1997:

“An employee shall be entitled to paid annual leave equal to

(b)    4 working weeks in a leave year in which he or she works at least 1,365 hours……

As the Complainant received 27.5 days annual leave in the leave year (April 2021 to March 2022) then he has received more than his statutory entitlement and therefore has no entitlement to any further annual leave under the Act.

In relation to SLWP the Respondent has applied the rules contained in HSE HR Circular 025/2021, these state:

“SLWP for Covid 19 will only apply when an employee is advised to self-isolate and is displaying symptoms of Covid 19 or had a positive test ……. SLWP does not apply to employees who are restricting their movements or are self-isolating due to being a close contact of a variant of concern, …..”

There has been no breach of the Organisation of Working Time Act,1997 and therefore I have no option but to find that the complaint as presented under section 27 of the Act is not well-founded.

There has been no breach of the Organisation of Working Time Act,1997 and therefore I have no option but to find that the complaint as presented under section 27 of the Act is not well-founded.

Organisation of Working Time Act, 1997; SLWP.