Complainant

Respondent

Parties

Stewart  O'Reilly

Lucan Disability Action Group Ldag

Representatives

Brendan Byrne, Unite the Union

Tommy Cummins, Adare Human Resource Management

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-00047833-001

23/12/2021

The complainant was on long-term sick leave in 2019 and accrued annual leave.  He believes that he was not given this leave despite requesting same.  The respondent states that the complainant not only received all his leave entitlement but was given leave in excess of his entitlement.

The complainant is employed as a driver with the respondent since 31/08/2009.  He was on long-term sick leave from 2019 and returned to work on 06/03/2020.  On his return he attended a meeting with the chairman and manager, and it was agreed that he was entitled to carry over a total of 20 days annual leave.  The complainant applied for this leave but his request was denied. 

By way of clarification there was an agreement reached in the WRC in relation to annual leave/time in lieu.  This resulted in 10 additional leave days to be taken in 2022 and an additional 10 days to be taken in 2023.  Local attempts to resolve this matter were unsuccessful.  These were put on hold pending the outcome of the WRC process, but the complainant’s issues were not addressed at that time.

The complainant gave evidence that he disputed the respondent’s record of annual leave.  The respondent assigned days as annual leave when he (and others) was rostered off but were still available for work.  There was no consultation in relation to the allocation of these days.  There was a general e mail circulated in relation to closures in the centre, but the complainant was not specifically informed of the annual leave days.  The complainant also submits that the respondent’s records do not indicate which of those days are related to his 2019 carry over days.

The respondent submits that there is no basis to the complainant’s claim for annual leave.  The respondent submits that its documentation shows that it has discharged its statutory obligations to the complainant in “a manner that greatly exceeds the Claimant’s entitlements under the Organisation of Working Time Act”. The respondent also refutes that it in any way frustrated the complainant in his attempt to take his annual leave entitlement.

The respondent also submits that the complainant believes that he can only take annual leave when he so wishes, and that the respondent has no right to allocate annual leave.  The respondent must take account of service obligations when allocating annual leave.  These include scheduled service reductions, seasonal closing and any other operational influences.  The respondent submits that these practices are not in breach of the Organisation of Working Time Act and the fact that the complainant does not want to take annual leave when required by the respondent does not constitute a breach of the Act.

The respondent provided a record of leave taken by the complainant and pay slips which show when he was paid annual leave.  A summary of these records is as follows: Leave for 2019 was carried forward to 2020 and the complainant had a total of 56 days leave in 2020. In 2021 the complainant was due a total of 20 days but was given 47 days.  His allocation for 2021 is 30 days.

The respondent submits that the complainant was paid for 103 annual leave days.  The respondent accepts that the outstanding leave from 2019 was not specifically allocated but as his overall allocation exceeds his entitlement, he is not due any outstanding leave.

The respondent is clear that they can show that all paid annual leave was taken in full by the complainant in 2020 including the carry over leave of 20 days from 2019.  There was no agreement to extend the leave beyond the year 2020.    It is a matter of fact that the complainant availed of 56 days annual leave in 2020.

There is no dispute in relation to the complainant’s annual leave entitlement.  The issue which is the subject of this complaint is that the complainant believes that he is due 20 days annual leave for the year 2019 which he carried over while on sick leave.  The respondent refutes this entitlement on the basis that he has been given more than his entitlement in the year 2020. 

The respondent accepts that it did not designate which of the days were allocated from the 2019 carry over block of days.  The complainant contends that the days allocated by the respondent could not be properly classed as annual leave days as they were rostered days off when he was required to be available to work if required.

The respondent was asked to submit relevant pay slips and rosters which would demonstrate that holiday pay was allocated.  This was received and the complainant was given an opportunity to review and respond to this information. The complainant responded to this information and maintained that he never received the 20 days he was due from sick leave.  It his position that there was no agreement in place to take holidays when he was available for work.  In that context the data in relation to holidays on the payslips is wrong.  He was on short time/reduced working from March 2020 to December 2020.

Section 20 (1) of the Organisation of Working Time Act, 1997 deals with the times and pay for annual leave:

20(1) 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 with the employee or the trade union (if any) of 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 within the leave year to which it relates or, with the consent of the employee, within the 6 months thereafter”.

The issue to be decided in this case is did the respondent comply with the Act and did the complainant fail to get his annual leave entitlement.

The Act places an obligation on the employer to maintain records which “will show that the provisions of this Act are being complied with in relation to the employee ….”  The respondent in this case has provided detailed records of the complainant’s annual leave.  The complainant disputes these records as, in his view, annual leave days were assigned on days when he was rostered off and was required to be available for work.  He does not accept that the respondent is entitled to allocate annual leave based on the exigencies and other obligations of the service.

The factual position in relation to the complainant’s annual leave is outlined in this table:

What is clear to me is that there is a difference of interpretation in relation to the complainant’s entitlement to take leave and the respondent’s right to allocate leave at times that suit the service. The respondent did confirm in writing that the complainant was entitled to the 20 days from 2019 and while these were not specifically allocated in 2020 it is clear that he received a total of 56 days in 2020 inclusive of the 2019 20 days.   

I have found no evidence to confirm that the respondent was in breach of the Organisation of Working Time Act, 1997. 

I decide that this complaint is not well founded.

Annual leave entitlement