ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00035859
Parties:
| Complainant | Respondent |
Parties | Rafał Terlecki | PHTS Limited t/a Patrick Horgan Tyre Services |
Representatives | Self-Represented | Paul Cronin - Accountant |
Complaint:
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-00047026-001 | 07/11/2021 |
Date of Adjudication Hearing: 11/07/2023
Workplace Relations Commission Adjudication Officer: Thomas O'Driscoll
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint. A remote hearing began on 19 July 2022, but contact was lost with a Polish interpreter online and the hearing was adjourned. The hearing was reconvened on a face-to-face basis. The Complainant, Respondent witness and the Polish interpreter swore affirmations on the giving and interpretation of evidence.
Background:
The Complainant was employed as a general operative at the Respondent tyre services company from 08 December 2018 to his official resignation on 25 September 2021. He was paid €408 gross; net €340 for a 40-hour week. The Complainant submits that he was due annual leave and public holiday pay for the period he was out on sick leave from 14 March 2019 to 16 November 2021. The Respondent denies any liability and claims that outside of the first three weeks of certification, in March 2019, no further communication nor certification was received from the Complainant until his letter of resignation in September 2021. |
Summary of Complainant’s Case:
The Complainant gave evidence, supported by documentation, of submitting sick certificates to the Respondent from 14 to 26 March 2019. He also submitted a sick certificate for the hearing from his GP dated 17 December 2021 which stated that the Complainant had been certified sick from 14 March 2013 to 16 November 2021. The Complainant accepted in evidence that bar the first three weeks of his illness, no further certificates were handed in to the Respondent. He attributed this to the Covid-19 crisis where consultation with his GP was remote only. |
Summary of Respondent’s Case:
The Respondent asserts that outside of the first three weeks of illness, no certification of illness was received by the Respondent. It is the Respondent’s case that an employer can only be obliged to pay annual leave for a period of certified illness only, within the bounds of the Organisation of Working Time Act 1997. |
Findings and Conclusions:
Annual Leave: I must determine whether the Complainant has discharged the initial burden of submitting sick certificates to the Respondent as provided for under Section 19(1A) of the Organisation of Working Time Act 1997, as amended, (the Act) where it states that an employee on certified sick leave is entitled to have such days determined as days to be calculated for annual leave. The section states: “ 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. It was common case that the Complainant submitted certificates for the first three weeks of absence up until the end of March 2019. The uncontested evidence was that no further sick certificates were submitted by the Complainant during the currency of his employment up until his resignation in September of 2021. Therefore, I am satisfied that the period from the end of March 2019 to September 2021 was a period of uncertified absence. The Complainant referred to a note from a GP dated 17 December 2021 which stated: “The above named patient was off work from 16/03/2019 to 16/11/2021”. This was not a certificate of illness as could be interpreted under the Act and was dated 17 December 2021 four months after the termination of the Complainant’s employment. The Complaint was submitted on 7 November 2021. I attached no weight to this documentation from the GP under the circumstances. The Complainant is seeking recompense for annual leave and public holidays for the aforementioned period. Section 41 (6) of the Workplace Relations Act 2015 states as follows: “Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates”. When dealing with the cognisable period for annual leave payment on cessation of employment the Labour Court case of Tapastreet Ltd & Joseph Mitchell Labour Court Determination DWT176 [ADJ-00000462] gives helpful guidance. The Court found that the entitlement of the employee to annual leave was statutorily limited to that arising from April 1st in the year on which any WRC claim was submitted, stating “any contravention of the Act arising from the Respondent’s failure to pay the Complainant in respect of outstanding annual leave on the cessation of his employment accrued within the period, i.e., from 1st April to 16th October 2015. In so far as the complaint relates to the Respondent's failure to pay the Complainant in respect of annual leave taken on dates prior to those dates, it is statute-barred, and to that extent, it is not cognisable by the Court”. The cognisable period for this complaint is from April 1, 2021, to the date of termination of his employment on 25 September 2021. The Complainant was on uncertified absence during this period therefore no payment for annual leave was due to him on cessation of employment. I find that his complaint for payment of annual leave was not well founded. The Complainant also claimed for payment of public holidays. Section 21(4) of the Act states: (4) Subsection (1) shall not apply, as respects a particular public holiday, to an employee (not being an employee who is a whole-time employee) unless he or she has worked for the employer concerned at least 40 hours during the period of 5 weeks ending on the day before that public holiday. In the cognisable period of six months before submission of the claim on 7 November 2021, the Complainant was on uncertified absence. He was not entitled to public holiday pay during that period. Therefore, I find that his claim for public holiday pay was not well founded. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
For the reasons outlined above, I decide that the claim for payment for annual leave and public holidays was not well founded. |
Dated: 3rd August 2023
Workplace Relations Commission Adjudication Officer: Thomas O'Driscoll
Key Words:
Organisation of Working Time Act 1997, Annual Leave, Public Holidays, Sick Leave |