FULL RECOMMENDATION
SECTION 28 (1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES: LIMERICK CITY AND COUNTY COUNCIL (REPRESENTED BY LOCAL GOVERNMENT MANAGEMENT AGENCY) - AND - SEAN CONSIDINE (REPRESENTED BY SIPTU) DIVISION:
SUBJECT: 1.Appeal Of Adjudication Officer Decision No ADJ-00030744 CA-00044400-001 The following is the Determination of the Court
Mr. Considine, ‘the Complainant’ is an Executive Engineer with Limerick City and County Council, ‘the Respondent’. In April 2020, the Complainant’s manager advised him that he was being transferred to a different work location. The Complainant raised a grievance under the Respondent’s Grievance Procedure. On 9 June 2020, the Complainant was removed from the payroll for not reporting to the new location. Following mediation, it was agreed that the Respondent would pay the Complainant’s wages from 17 August 2020. On 30 May 2021, the Complainant lodged a complaint with the Workplace Relations Commission, ‘WRC’, under the Organisation of Working Time Act, 1997, claiming that his annual leave entitlement had been reduced by six days due to a failure to apply annual leave accrual while he was on sick leave. An Adjudication Officer, ‘AO’, decided that the Complainant should be paid a sum of €1615.20 in lieu of the six days plus compensation of €500. Both parties appealed to this Court. The Court’s attention was drawn to the fact of other proceedings involving the two parties. However, the Court is satisfied that it has jurisdiction to hear the matters before it and was not made aware of any awards made in any other forum based on the same facts. Summary of Complainant arguments. The Complainant lives in Shannon, Co. Clare and cares for his son who has considerable health issues. Because of the pandemic, in March/April 2020, the Complainant was granted leave to work from home. On 28 April 2020, the Complainant was told that his place of work was being transferred to Kilmallock/Cappamore. The Complainant protested against this move. He raised a formal grievance under the Grievance Procedure on 13 May 2020. While awaiting the processing of the grievance, the Respondent insisted that the Complainant relocate. However, the Respondent’s Grievance Procedure states that ‘During the course of the Grievance Procedure the status quo will be maintained and work will continue without interruption’. It goes on to state that ‘No industrial action of any form will be taken by either side during the course of the procedure’. Despite this, the Complainant was pressurised to relocate and was removed from the payroll on 9 June 2020 for refusing to re-locate. The union sought the maintenance of the status quo, as per the procedure, and sought that the Complainant be allowed to appeal the action taken against him. He was never afforded any appeal, although it was open to the Respondent to utilise its own Disciplinary Procedure. The Complainant also lodged a complaint under the Dignity at Work policy against his manager, Mr. Conor Culloo, on 18 June 2020. Also, on 18 June 2020, the Complainant’s grievance was heard. The Complainant continued to work from home until 1 July 2020 when his access to work systems was removed. After correspondence from the union to the Respondent, a process of mediation was agreed. The was an agreed outcome but, subsequently, the Complainant was told to report to Mr. Culloo, an instruction to which he took exception in view of his complaint. Following negotiations, the Respondent agreed to restore the Complainant to the payroll from 17 August 2020 and the non-payment from 9 June 2020 to 17 August 2020 was referred to the WRC. Further negotiations ensued but the Respondent kept ‘moving the goalposts’ by changing suggested locations. At a ‘back to work’ meeting on 26 November 2020, the Complainant was issued with an inappropriate list of duties. The Complainant was refused the right to take annual leave and was again removed from the payroll on 30 November 2020. He was certified sick for that period. There were no fair procedures. The Respondent breached their own procedures. The Complainant was denied natural justice. The Respondent failed to apply the Complainant’s entitlements under the Acts and the AO Decision was correct, subject to possible amendment arising from a parallel case. Summary of Respondent arguments In March/April 2020, following a review of engineering assignments, the Complainant was re-assigned to a different area and, similar to others being re-assigned, he was informed. The Complainant submitted a sick certificate on 29 April 2020. He raised a grievance on 17 May 2020 and submitted a further certificate for 18 to 22 May 2020. He declined the offer to have the grievance heard remotely. The Complainant was advised that he would be required to make the relevant move and that it would be noted that he had done so under protest. He continued to refuse the move despite further correspondence. On 9 June 2020, the Complainant was advised that he was being removed from the payroll for failing to carry out a legitimate instruction. In order to be paid a salary the Complainant is required to attend work. Following correspondence and engagement with the Complainant’s union representative, a mediation process was agreed and agreement on an outcome was signed by the Complainant on 28 October 2020. Subsequently, another role for the Complainant became available and it was agreed that he would fill that on 12 November 2020. On 11 November 2020, the Complainant declined the offer of assignment. On that basis, he was assigned back to the original intended transfer location. The mediator met with the Complainant, who indicated that he would now accept the post to which he had been assigned from 12 November 2020. That post was no longer available. The Complainant failed to attend for work. On 28 November 2020, the Complainant’s application for annual leave was refused as he had not attended for work. A sick certificate was received by the mediator. The Respondent advised the Complainant’s representative that he was in breach of the mediation agreement. Further correspondence ensued regarding requested annual leave. No progress was made. Subsequent correspondence took place in which the Complainant expressed a willingness to accept transfer, subject to not being required to work to Mr. Culloo. Following a WRC hearing in December 2021, further discussions took place and agreement was reached on the Complainant returning to his original workplace in a different role, which he did when medically certified as fit to do so from 20 April 2022. The AO erred in applying a payment of annual leave, for which there is no basis in the Act other than at the cessation of employment. There is no basis for compensation to be paid as, following a request for annual leave, the Complainant went on sick leave. The applicable law Organisation of Working Time Act, 1997. 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): Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater. Deliberation. The Complainant worked from 1 April 2020 to 8 June 2020. He began to accrue annual leave again from 17 August 2020. It is clear that he accrued in excess of 1365 hours, as per s.19(1)(a) of the Act and that is entitled to 20 days’ leave in that leave year. The Complainant was wrongly denied 6 days’ leave. The Court concurs with the view of the Respondent that the appropriate remedy is the re-instatement of those 6 days’ annual leave by adding to his leave entitlements in the existing leave year rather than payment for same and payment of compensation. Determination. The Decision of the Adjudication Officer is varied accordingly.
NOTE Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary. |
