Complainant

Respondent

Parties

John  Nolan

Kilkenny County Council

Representatives

SIPTU

Local Government Management Agency (LGMA)

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-00054413-001

09/01/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998

CA-00054413-003

09/01/2023

The complainant has been employed by the respondent since October 2000. His complaint under the Organisation of Working Time Act is that he has only been granted paid leave for 18 days for the leave year January 2022 to December 2022 and he should have been granted 20 paid annual leave days under section 19 of the Act.

His second complaint is that he was granted a force majeure day for an absence on 24th August 2022 which was later withdrawn by the respondent.

On the annual leave complaint, the respondent has raised a preliminary matter that the complaint is out of time and/or premature. Without prejudice to the preliminary matter, the respondent denies the Organisation of Working Time Act has been breached.

The respondent asserts that the force majeure leave application does not comply with circular 05/2010 and the Parental Leave Act. This became apparent when further information on the reason for the absence was submitted by the complainant.

Summary of Complainant’s Evidence

The complainant gave evidence that he applied for leave during the leave year January 2022 to December 2022. Over the course of the year 18 days annual leave were authorised and paid. A further 13 days leave were taken which were classified by the respondent as unauthorised and were unpaid. He said that over the course of the year he applied for leave as normal. He noticed from his payslips that he was unpaid for some days, so he followed up with management and then through his union.

He said that even though some absences were categorised as unauthorised he was never called in or queried over these 13 absences spread over the year.

On the force majeure application, his son had a scheduled hospital appointment. He had to step in to drive his son to the hospital. He was the only person available who could drive his son and he knew this from the night before. He said the force majeure leave was granted and later withdrawn by management. He had received payment and later it was deducted.

The complainant was cross-examined by the respondent’s representative on why he was not going through the appropriate supervisor when requesting leave. He replied that he followed custom and practice and continued to apply for leave as normal. He was asked whether he had 31 days leave per year. He confirmed that he had 25 days leave.

It was put to him that the hospital visit was a planned appointment which he knew of weeks in advance. His reply was that he was let down and had to drive his son to the appointment. He was questioned on the force majeure leave policy within the employment.

Summary of Mr Bourke’s Evidence

Mr Bourke said he works from Gaol Road depot and is shop steward. He gave evidence that leave was always booked through P.K.

He said he also had taken leave and he subsequently found out that it was unauthorised and unpaid. He always had to check his wages and then follow up if he was docked money when on leave.

The respondent denies both complaints.

As a preliminary matter, the respondent states that the complaint has not been submitted within 6 months of the date of the contravention, as per section 41(6) of the Workplace Relations Act 2015. As the leave year under the Organisation of Working Time Act begins from April, the complaint is out of time for the leave year ending on 31st March 2022. The complaint received on 9th January 2023 by the WRC was mid-year for the leave year April 2022 to March 2023. In accordance with the Act there could be no breach.

The respondent’s submission confirms the complainant’s contention that he was paid annual leave for 18 days over the course of the year. The submission also sets out that 5 days leave was carried forward into 2023.

CA- 00054413-001- Organisation of Working Time Act Complaint

Finding on Preliminary Matter

Section 41 of the Workplace Relations Act provides as follows:

(6) 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.

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

The complaint form was received by the WRC on 9th January 2023. Therefore, the cognisable period is from 10th July 2022 to 9th January 2023. As the complainant states on the complaint form ‘I have not been paid for all my leave days,’ there is a need to establish when a contravention occurred.

Any breach of the Act for the leave year ending on 31st March 2022 is outside of the 6-month cognisable period. The next leave year under the Act of 1st April 2022 to 31st March 2023 was ongoing when the complaint was received in the WRC on 9th January 2023.

For the above reasons, I decide that I have no jurisdiction to hear the complaint.

CA- 00054413-003- Parental Leave Act Complaint

The Law

13.—(1) An employee shall be entitled to leave with pay from his or her employment, to be known and referred to in this Act as “force majeure leave”, where, for urgent family reasons, owing to an injury to or the illness of a person specified in subsection (2), the immediate presence of the employee at the place where the person is, whether at his or her home or elsewhere, is indispensable.

Finding

There is no conflict in evidence between the parties on this issue. The complainant made an application for force majeure leave on 24th August 2022 to bring his son to a hospital appointment. Although initially granted, on receipt of further information, the respondent withdrew the approval, as the appointment was a planned appointment with advance notice.

I decide due to the advance notice of the scheduled appointment that this does not comply with section 13 of the Act. The lack of ‘urgent family reasons’ for the ‘immediate presence’ of the complainant does not adhere to section 13 due to the scheduled appointment with advance notice. Even though the respondent sanctioned the leave, this was based on the initial information on the application form. The respondent was entitled to withdraw the approval on receipt of the additional information which clarified the circumstances.

For the above reasons, I find the complaint not well founded.

CA- 00054413-001- Organisation of Working Time Act Complaint

I decide that I have no jurisdiction to hear the complaint.

CA- 00054413-003- Parental Leave Act Complaint

I find the complaint not well founded.

Annual Leave, Force Majeure Leave