FULL RECOMMENDATION
SECTION 28 (1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES: LIMERICK CITY & 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-00044352-003
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 entitlement to accrue annual leave during a period of sick leave had been denied to him. An Adjudication Officer, ‘AO’, decided that, as an award of annual leave accrued was being made under another complaint in respect of the same leave period, no award should be made in respect of this complaint. The Complainant 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 2018. 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. The parallel case to which the AO referred, concerns a deduction of annual leave in the relevant year. This complaint concerns the right for annual leave to accrue while an employee is on sick leave, which can be carried forward, as per s.86(1) of the Workplace Relations Act, 2015. 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 Respondent is satisfied to apply s.86(1) of the 2015 Act, accepts that statutory annual leave accrues during a period of sick leave and that an annual leave carryover period of 15 months applies to employees who could not, due to illness, take annual leave during the relevant leave year or during the normal carryover period of 6 months. The applicable law Workplace Relations Act 2015. 86.(1) TheOrganisation of Working Time Act 1997is amended— (a) in section 19, by the insertion of the following subsection: “(1A) 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.”, (b) in section 20, by the substitution of the following paragraph for paragraph (c) of subsection (1): “(c) to the leave being granted— (i) within the leave year to which it relates, (ii) with the consent of the employee, within the period of 6 months after the end of that leave year, or (iii) where the employee— (I) is, due to illness, unable to take all or any part of his or her annual leave during that leave year or the period specified in subparagraph (ii), and (II) has provided a certificate of a registered medical practitioner in respect of that illness to his or her employer, within the period of 15 months after the end of that leave year.”, Deliberation. For periods while on sick leave, the Complainant accrued annual leave and has a statutory entitlement to carry same for 15 months after the end of that leave year. This is accepted by the Respondent. Any consequence of delay due to non-application of this provision to date warrants a flexible interpretation by the Respondent to ensure that no disadvantage results for the Complainant and the Court so determines. Determination. The Decision of the Adjudication Officer is overturned.
NOTE Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary. |
