Worker

Employer

Anonymised Parties

A Worker

An Employer

Representatives

Mr Joseph Ateb SIPTU Trade Union

 Industrial Relations Manager

Act

Dispute Reference No.

Date of Receipt

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

CA-00047121-001

11/11/2021

The Worker commenced employment with the Employer in 1999.  He was promoted to the position of Supervisor in 2012 and his duties included supervising employees within his department.  The Employer is in the business of transportation.   On the 11/11/2021 the Worker referred the present dispute within the definition of the Act to the WRC.  In the absence of any objection from the Employer, the matter proceeded to hearing on 16/01/23.  This dispute concerns a claim by the Worker that he is due an amount of outstanding annual leave having been absent from work for three years as set out in the WRC complaint form. 

Both parties provided helpful written submissions in advance of the hearing.  Through absolutely no fault on the part of the Worker’s representative, I did not have sight of the Worker’s written submission until the commencement of the hearing at which time the Worker’s representative very kindly provided me with a copy. 

By submission the Worker’s representative states should I find in favour of the Worker, a recommendation is sought that in addition to the payment of all outstanding monies owed to the Worker, some form of restitution be made also for the stress and emotional impact this has had and continues to have on the Worker. 

By submission the Employer respectfully asks the Adjudication Officer not to uphold the Worker’s complaint. 

In March 2017 the Worker was suspended from his duties pending investigation due to an issue at work.   On or around November 2020 the Worker’s employment was terminated.  The Worker invoked his right to appeal the termination on or around December 2020.  The Worker’s appeal was upheld, and he returned to work on or around February 2021.  The Worker asserts the Employer owes him annual leave not taken between March 2017 when he was suspended and his return to work in February 2021.  The Worker is claiming 24 days for 2017, 2018 and 2019 respectively, totalling 72 days.  The Employer provided the Worker with his statutory annual leave (20 days) for 2020 on his return to work in February 2021.  The Worker submits outstanding annual leave for 2017, 2018 and 2019 remains outstanding to him. 

In 2017 the Employer initiated disciplinary proceedings against the Worker in line with Grievance and Disciplinary procedures as agreed between the Employer and the relevant Trade Unions.   The worker was suspended on basic pay pending the outcome of the disciplinary process.  The Worker withdrew from participation in the disciplinary process and initiated High Court proceedings against the Employer.  The Employer asserts by taking legal action in 2017 the Worker made a deliberate decision not to adhere to the Employer’s collectively agreed disciplinary procedures.  A lengthy legal case ensued, and the Employer was not able to proceed with the disciplinary process until the termination of the legal proceedings. 

The Employer states the Worker’s period of suspension on pay lasted in excess of three years which was entirely due the actions of the Worker himself.   The Worker was paid his contracted rate of pay for every working day of the period of his suspension.  The Employer submits this was an extremely reasonable position to adopt given the circumstances created by the Worker.   The Employer further submits, in effect, the Worker has already been paid for the time he would have been on annual leave. 

When the Worker returned to work in February 2021 the Employer provided the Worker with his full statutory annual leave for the previous calendar year 2020.  The Employer submits this was a very reasonable decision in the circumstances created by the Worker himself.  Furthermore, it is consistent with the Employer’s annual leave policy which states employees are not allowed to carry over any annual leave from one calendar year to the next.  The Employer submits that to have given further annual leave to the Worker would have been inconsistent with the policy and seen to be unfair in the context of other employees. 

When the Employer agreed to provide the Worker with his statutory annual leave for 2020 on his return to work in 2021, the Employer’s unequivocal position was that there was no other outstanding statutory annual leave due to the Worker.  Notwithstanding, the parties confirmed there has been further engagement between the Employer and relevant Trade Union on this matter in the intervening period culminating in this referral to the WRC.  The Employer acknowledges this is a unique case but asserts it has acted in the manner of a reasonable employer throughout given the totality of the circumstances. 

CA-00047121-001

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

Paid suspension pending the outcome of disciplinary procedures is typically envisaged to last between four to six weeks but paid suspension evolved into a nigh on four-year event in the within case due to an unprecedented turn of events.  In fact, the Worker was on paid suspension for just short of four years.  He was suspended in March 2017 and returned to work in February 2021.   I note this is not a case where the inordinate length of the paid suspension was at the behest of the Employer.  I note it is not a case where the tardiness or otherwise of the Employer in the conduct of the disciplinary procedure resulted in an unprecedented lengthy paid suspension.   

The length of the paid suspension was due to events completely out of the control of the Employer and are not the subject of this dispute.  This dispute is concerned solely with the Worker’s claim that he is owed 72 days annual leave by his Employer as set out in the appendices of the Worker’s written submission at appendix 1. 

There is no provision regarding annual leave in the suspension letter in March 2017 from the Employer to the Worker when he was suspended in line with the company’s Grievance and Disciplinary procedures as agreed with the relevant Trade Unions.  The Disciplinary procedures provide that “staff summarily suspended from duty will be paid basic rate of pay pending application of the formal disciplinary machinery.” 

I had sight of the suspension letter during the hearing kindly provided to me by the Worker on his phone and there is no reference to annual leave arrangements during paid suspension in said letter.  It would be reasonable to infer that the belief at that time was that the disciplinary process would be completed as expeditiously as possible.  I am satisfied it would never have entered the mind of the individual drafting the suspension letter that a paid suspension would continue for almost four years in respect of any employee.  The accrual of annual leave is unlikely to have been considered at all.

Neither is there a provision in the Employer’s Annual Leave Policy for such an exigency as a three year plus paid suspension and annual leave arrangements pertaining to same as confirmed by the Employer during the hearing. 

The Employer’s Grievance, Disciplinary Policy & Procedure is silent also on the matter of annual leave in the context of a paid suspension and it provides “disciplinary matters shall be processed expeditiously and all parties shall co-operate to this end.  Where either party considers that there is undue delay, the Company and Trade Union shall arrange an immediate meeting to discuss the reason for the delay and Manager, Human Resources shall be notified.”  It is apparent from this extract that an expedited process was of fundamental importance to the parties when agreeing the procedures during lengthy discussions between the parties facilitated by the then Labour Relations Commission.  The policy was implemented in March 1994 and has been in place since.  I am satisfied it is reasonable to infer that annual leave arrangements in the context of a paid suspension in excess of three years would not have entered the minds of the negotiators of the aforesaid procedures at that time bearing in mind the significant importance accorded to the expeditious processing of disciplinary matters as expressed in said procedures.     

The Worker in the within case is seeking payment for annual leave accrued while he was on paid suspension from March 2017 to February 2021, a period of three years and eleven months.  The Employer reaffirmed the Worker received payment for every working day of every week of every month of every one of those years in response to a query from the Worker’s representative during the hearing when he sought confirmation there had been no cessation of payment during the period of suspension.  For the avoidance of any doubt, the Worker agreed and confirmed there had been no break in payment during his suspension. 

Having carefully considered the written and oral submissions together with all the information presented to me during the hearing I am satisfied the Worker was not restricted from taking his paid annual leave during his paid suspension either by the terms of the suspension itself or by any provisions of the Annual Leave Policy or by the Grievance, Disciplinary Policy & Procedures.

I am satisfied it is not a case that the Worker was prevented by the Employer from taking his paid annual leave.  The Worker was free at all times during his paid suspension to fully avail of his leave entitlement in the relevant leave years.  There was no expectation on the part of the Employer that the Worker make himself available to attend meetings relating to the disciplinary process because the Worker had withdrawn from participating in the disciplinary process.  It is not a case where the Worker was prevented from taking his annual leave due to excessive work demands.      

I deemed it necessary to make my own inquiries into the dispute to establish and understand the facts and to seek clarification on certain matters.   Accordingly, when I questioned him during the hearing Worker stated, in response to a direct question from me, that he had in fact availed himself of a trip abroad on holiday during 2018.  He had contacted his line manager to this effect to notify him.  The Employer raised no issue with this at the time.  Notwithstanding, I note the Worker’s submission at appendix 1 claims 24 days for 2018.  If the Worker had wished to avail himself of a trip abroad in 2017 and 2019 it is reasonable to infer from the acquiescence of the Employer in 2018 that there would have been no issue in either the preceding or subsequent year and authorisation would have been forthcoming.    

The Worker’s representative requested that the fact that the Worker could not take holidays during his suspension because he had other priorities is what should guide me when making my recommendation in the within case.  While I have considered the Worker’s representative’s submission in this regard, I respectfully find it is completely a matter of personal choice for the Worker what he chose to prioritise in 2017 and 2019.  I find it unreasonable that the Worker should attempt to lay responsibility or liability for said choices at the door of the Employer by now seeking payment for annual leave not taken while on paid suspension. 

I find there was no impediment to the Worker exercising his entitlement to his paid annual leave when he did so in 2018 and I am satisfied should he have elected to exercise this right in 2017 and 2019 he would not have been impeded by the Employer in so doing.    

This is a unique case in terms of the length of the paid suspension.  The entitlement to annual leave is generally understood to relate to time worked.  In the within case there was no time worked by the Worker between March 2017 and February 2021, yet he remained on contractual pay throughout.   He is now seeking payment for holidays accrued yet he was unencumbered by work and free at all times to fully avail of his entitlement in the relevant leave years as he did in 2018.  I am satisfied the Worker had more than ample opportunity to exercise his right to take his paid annual leave.  I am satisfied the Worker cannot claim he was prevented from exercising his right by the Employer. 

The Employer gave the Worker his statutory annual leave for 2020 (20 days) when he returned to work in February 2021 to be used in full by 30 June 2021.  I cannot think of any circumstance in which this can be considered other than fair and reasonable.   I am satisfied this matter should have ended there.  For the reasons set out above I find this claim is without merit and must fail. 

In the interest of completeness, this could well be a jurisdiction that is prohibited by section 13 of the Industrial Relations Act, 1969 insofar as it is a dispute that is connected to annual holidays and potentially to a body of workers.  However, as I find the dispute to be entirely lacking in merit this point is purely academic. 

Accrued annual leave;  paid suspension;