Complainant

Respondent

Parties

David  Morrow

Abbott Laboratories, Ireland, Limited. 

Representatives

  Complainant

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-00049450-001

31/03/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00049450-002

31/03/2022

The complainant, Mr. Morrow, worked for Abbotts (the respondent) for approximately 7.5 months.  While his contract provided for 21 days leave, the respondent’s position was that he was entitled to 14 days based on the length of his normal working day which was 12 hours.  The complainant also alleged that he had not been compensated for some public holidays.

Evidence was given by the complainant Mr. Morrow and Mr. Paul Martin for the respondent.  Evidence was given under oath/affirmation and subject to cross examination.

CA-00049450-001  Annual Leave

The complainant worked in Abbott Donegal Town for approximately seven and a half months. He was delighted to get the position as it was closer to home and he had wanted to get into the medical device/pharmaceutical sector for quite some time. He was happy with the contract at time of signing and with the holiday allowance which stated "21 days annual leave per year in addition to public holidays" which the complainant thought to be a total of 30 days per year. After approximately 3 months the complainant was booking some days off with his direct manager, when a conversation arose where she told him that the holiday allowance was 14 days as opposed to the 21 stated in his contract. The complainant was extremely disappointed to discover this fact after leaving his previous employment and believed that he was misled in the information that he was given upon joining Abbott’s.

The complainant asked his manager to rectify the problem but heard nothing for some time. Eventually he was informed by Mr Ivan Matthews that his entitlement was 168 hours, which equated to 21 days based on an 8 hour day. As the complainant was working 12 hour days this equated to 14 such days.  Nothing in his contract indicated that this was the situation.  He therefore resigned and in his letter of resignation outlined again his grievance relating to holidays. He did receive a phone call from Michael Kearney (Shift Leader) asking him why he had handed in his notice. Michael was very pleasant on the phone stating that he did not want to see the complainant go as he was getting on very well in the position but understood when the complainant told him about annual leave contract issues.

The complainant submitted a formal grievance.

After 2 working days of nothing not even an acknowledgment or receipt of his grievance the complainant decided to hand in his notice with immediate effect as this was starting to have adverse effects on him. He sent an Email to Ivan Matthews, Paul Martin, Louise Boyle and Michael Kearney on 30/3/22 stating:

‘Good Evening It has been 2 days since I forwarded the below emails for your attention and not one person has had the courtesy to reply or even acknowledge receipt of my grievance. It is with this in mind that I hereby resign with immediate effect. If somebody could kindly respond to my personal email address … I will make arrangements to return my laptop and ID badge / collect my personal effects as soon as possible’.

The complainant is seeking compensation for the holidays specified in his contract.

CA-00049450-002 Public Holiday Entitlement

The complainant’s contract stated 21 days annual leave per year in addition to public holidays.  The complainant encountered difficulty in getting the appropriate public holidays.  The respondent said that only public holidays not worked were added to his annual leave allowance. This year there were 10 public holidays and the complainant was rostered to work on 6 of these.  He was only given 4 additional days annual leave.   The complainant is seeking compensation for the public holidays which were not added to his annual leave allowance as specified in his contract.

CA-00049450-001  Annual Leave

The complainant alleges a breach of the Organisation of Working Time Act pertaining to annual leave entitlement and public holiday entitlement.

The Respondent disputes this claim in its entirety and can produce working time records in order to demonstrate beyond doubt that the alleged contraventions did not occur. Furthermore, the relevant legislative provisions were complied with in relation to the complainant, and the Organisation of Working Time Act was not contravened in the manner alleged. The complainant commenced employment with the respondent on 16 August 2021 in the role of Process Lead at the respondent manufacturing site in Donegal Town. The complainant worked on a continental shift cycle averaging out at 42 hours per week over a four-week period, working 12-hour shifts on any days rostered. The claimant worked fourteen such shifts every four weeks.

The claimant received a copy of his contract of employment from HR on 15 July 2021.  Section 10.1 of the contract deals with holidays and states "you will be entitled to 21 days holidays per year in addition to statutory public holidays in each holiday year to be taken at such times our times as the company considers most convenient and otherwise in accordance with the organization of the working time act 1997". This is a standard contractual clause referring in the main to employees rostered on a five day per week 39-hour contract.

When calculating leave entitlement for shift workers the respondent, as per industry norms, uses an hourly bank to ensure employees received their statutory entitlement as per section 19 of the Organisation of Working Time Act 1997.

The claimant raised an issue concerning annual leave entitlement in or around 17 March 2022 and Mr Ivan Matthews, Operations Manager, responded by e-mail clarifying the situation as follows "hi David. it's 168 hours AL entitlement. 21 days based on 8 hours are 14 days based on 12-hour shifts. Thx ".

The complainant submitted a complaint form to the WRC on 31 March 2022. As such, the cognizable period for the complaint is the period from 01 October 2021 to 31 March 2022. In the 2021 leave year, the Claimant worked from 16 August to 31 December, a period of 20 weeks. The statutory annual leave entitlement, in accordance with sec 19 of the Act, was 1.54 weeks or 64.7 hours.

In the 2022 leave year the Claimant worked from 01 January to 30 March, a period of 12.5 weeks. The annual leave entitlement, in accordance with sec 19 of the Act was .96 weeks or 40.3 hours rounded to 41 hours. The Claimant carried over 26 hours of his leave entitlement from 2021 into the leave year 2022. The claimant used 38 hours of annual leave between 01 January and his departure from the company on 30 March. The remaining holiday balance of 41 hours was paid on week 16 of 2022, gross payment €673.90.

 The Respondent provided the complainant with a copy of his terms and conditions of employment, as well as access to the Company's policies and procedures included during induction on taking up his appointment. The Organisation of Working Time Act 1997 sets out statutory rights for employees in respect of rest, maximum working time and holidays. Section 19 (l)(a) of the Organisation of Working Time Act clearly outlines that the entitlement for annual leave of any employee is "4 working weeks in a leave year in which he or she works at least 1365 hours".

The first time any issue was raised was by e-mail from Louise Boyle to HR on 17 March 2022 where she indicated "David Morrow is looking for some clarification on section 10.1 of contract pertaining to total number of days of annual leave entitlement". Ivan Matthews, operations manager, responded immediately by e-mail to the claimant indicating. "Hi David, it's 168 hours AL entitlement. 21 days based on 8 hours are 14 days based on 12-hour shifts. Thx. "

The complainant resigned his position by e-mail on 23 March 2022 giving 2 weeks' notice. The complainant resigned for a second time, with immediate effect, on 30 March 2022.

It is accepted that the wording of the complainant’s contract did not accurately reflect the manner in which personnel deployed on a 12-hour shift pattern received their holiday entitlement however this matter was explained to the complainant. The complainant insisted that he was entitled to 21 days of 12-hour shift which would equate to 6.3 weeks leave. The Respondents submit that the claimant received his statutory entitlement under section 19 of the Act.

CA-00049450-002 Public Holiday Entitlement

During the Claimant's period of employment there were six public holidays as follows:

                25 October 2021

                25 December 2021

                26 December 2021

                01 January 2022

                17 March 2022

                18 March 2022

The complainant received his public holiday entitlement for these dates as follows: -

25/10/21 - Not Rostered to work Public Holiday. 12hrs AL added to holiday balance

25/12/21 - Not Rostered to work Public Holiday. 12hrs AL added to holiday balance

26/12/21 - Not Rostered to work Public Holiday. 12hrs AL added to holiday balance  

01/01/22 - Public Holiday fell 01/01/2022 and got paid 12hrs Public Holiday for this day.

 17/03/22- took AL on 17 March, paid 12hrs AL + 8.50hrs pay for Public Holiday

 18/03/22 - Not Rostered to work Public Holiday. 12hs AL added to holiday balance

There are now ten public holidays in the calendar year. Section 21(1), as amended, of the Organisation of Working Time Act 1997 clearly outlines that the public holiday entitlement is fulfilled by whichever one of the following his or her employer determines namely: -

(a)          a paid day off on that day,

(b)          a paid day off within a month of that day,

(c)           an additional day of annual leave,

(d)          an additional day's pay:"

The Respondent submits that the complainant received his statutory entitlements in terms of holidays and public holidays as per section 19 and 21 of the Organisation of Working Time Act 1997.

CA-00049450-001  Annual Leave

In determining the issue of the complainant’s entitlement to annual leave my jurisdiction is confined to statutory annual leave as provided for under the Organisation of Working Time Act 1997 which provides as follows at Section 19;

19.—(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

…….

(6) References in this section to a working week shall be construed as references to the number of days that the employee concerned usually works in a week.

As can be seen from the above section (Section 19(6), the complainant received the equivalent of 4 weeks annual leave per year which was his full statutory  annual leave entitlement and therefore the complaint is not well founded.

CA-00049450-002 Public Holiday Entitlement

During the hearing the respondent detailed the public holidays given to complainant including compensation in lieu of such holidays and it was accepted by the complainant that he has now received his full statutory entitlement.  This complaint is therefore, not well founded.

CA-00049450-001  Annual Leave:  This complaint is not well founded.

CA-00049450-002 Public Holiday Entitlement: This complaint is not well founded.

Statutory annual leave