Complainant

Respondent

Parties

Nicole  Marques Montano

Federative Republic of Brazil

Complainant

Respondent

Representatives

Mannion Solicitors

 Keans Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00048758-001

22/02/2022

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

CA-00048758-002

22/02/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00048758-003

22/02/2022

The complainant has submitted complaints under section 6 of the Payment of Wages Act, 1991, under section 27 of the Organisation of Working Time Act, 1997 and under section 77 of the Employment Equality Act, 1998.

The complainant is employed with the respondent since 21 March 2020 as a Support Auxiliary, working in the administrative section.

Her gross monthly pay is €2259.

She submitted her complaint to the WRC on 22/2/2022.

CA-00048758-001. Complaint under section 6 of the Payment of Wages Act, 1991.

The complainant submits that the respondent made an unlawful deduction of €1279 per month from the 31 August to February 2022, which is a cumulative deduction of €7674.

The complainant was on maternity leave from 1 August 2021 to 9 February 2022. She understood that she would be paid a top of payment of €1279 per month for the 6 months of maternity leave, which represents the difference between the state funded maternity benefit and her salary. Her first payment of the top up was due on 31 August 2021. Heretofore it has been the tradition to pay the top up to employees on maternity leave. The complainant’s contract of employment makes no mention of the payment or otherwise of salary during maternity leave.

Evidence of the complainant given under affirmation.

Her manager had told her in January 2020 that she would be paid the top up payment.

She made efforts to secure the benefit, but when the relevant official sought approval for the payment from the relevant parent department in Brazil, it was refused.

She was only told by an embassy official on 24 August 2022, five days after the birth of her son, that she would not be paid the benefit.

The last employee to go on maternity leave before the complainant received the top-up payment.

In addition, the embassy had previously paid a male employee his full salary while on sick leave in 2019, though his contract, like her own, made no provision for this discretionary payment. Discretion was exercised in his favour, not in hers.

She went on maternity leave on 1/8/2021.

The complainant had informed her direct manager on the 29th of December 2020 of her pregnancy

The failure of the employer to top up the complainant’s salary during her maternity leave constitutes an unlawful deduction from her salary as covered by Section 5 of the 1991 Act.

Thecomplainant’s monetary loss is calculated at €7,674.42.

Evidence of a former colleague

The witness, a former colleague until 2020, gave evidence under affirmation and confirmed that when she went on maternity leave in 2017, she received a top of her salary to equal the difference between maternity benefit and her salary.

CA-00048758-002. Complaint under section 27 of the Organisation of Working Time Act, 1997.

Evidence of complainant.

This complaint concerns the loss of 14 days leave accrued in the 2020- 21 leave year.

On 19 July 2021 the complainant requested 14 days annual leave, accrued from 2020-21 year, as her maternity leave was scheduled to commence two weeks later. She was working from home during this period and the pandemic was at large at the time. The respondent manager in place on that date advised her that she could take the annual leave after her maternity leave, due to end on 9/2/2022.

On 14 December 2021 she requested annual leave following maternity leave for the 14 days owing from 2019-2020. The respondent told her that she could carry the 14 days into 2022 and add them to her 2021-2022 entitlement.

She sent a formal grievance letter to the respondent Deputy Head of Mission on 16 December 2021. The respondent told her in a letter on the 11 January 2022 that she could not carry annual leave for more than a year, which to the respondent meant the end of December 2021. This was not in her contract. She lost, therefore, her annual leave for 2020-2021. The employer did not ever ask her to take leave for 2020-2021 annual leave year.

Evidence of the former colleague.

The witness, Ms Gerk, stated that she has seen other staff carry over leave.

Conclusion

The complainant had never carried over leave previously.

The complainant relies on Sebastian Kreuziger v Land berlinC-619/16 . That employee’s employment had ended without him taking his annual leave. The Court of Justice of the European Union held the burden lay on the employer to ensure that the employee was actually given the opportunity to take paid leave, including informing the employee ‘accurately and in good time’ that the leave could lapse. He was held to be entitled to a payment in lieu.

CA-00048758-003. Complaint under section 77 of the Employment Equality Act, 1998.

This is a complaint of victimisation contrary to section 74 of the Ac t of 1998.

The complaint submitted a formal complaint to the respondent on the 16 December 2021, complaining about their decision to deny her a top up payment for the duration of her maternity leave and contrasting her treatment with that of a male colleague, paid a discretionary top up payment  during his period of sick leave.

Evidence of the complainant.

The complainant states that she was victimised by the respondent in the withdrawal of leave entitlements from her on the 11 January 2022, on foot of lodging her complaint on the 16 December 2021 concerning the denial of a top up payment to her for the duration of her maternity leave.

Cross examination of the complainant.

The respondent’s representative stated that he had no questions to put to the complainant on any of the three complaints set out above.

CA-00048758-001. Complaint under section 6 of the Payment of Wages Act, 1991.

The respondent did not attend. The respondent was represented by his solicitor.

The respondent’s solicitor did not contest the complainant’s evidence that she had not been paid a top up.

The respondent’s written correspondence submitted in evidence by the complainant indicates that the relevant ministry had made no provision for this payment and that therefore they were unable to pay this top up payment to her.

The respondent’s representative stated that he had no questions to put to the complainant.

CA-00048758-002. Complaint under section 27 of the Organisation of Working Time Act, 1997.

The respondent’s solicitor stated that the statutory facility for carrying over of annual leave only arises in circumstances where the complainant is on certified sick leave; this is not the case in the instant complaint.

The complainant did not ask to take leave.

Whatever about the merits of the complaint, it must be confined to the 14 days of leave.

CA-00048758-003. Complaint under section 77 of the Employment Equality Act, 1998.

The respondent strongly refutes the complaint that they victimised the complainant. She was not victimised.

The respondent merely set out their statutory obligations concerning leave and they conformed with these obligations.

CA-00048758-001. Complaint under section 6 of the Payment of Wages Act, 1991

I have to decide if the cumulative deduction of €7674 made on the 9 February 2022, is an unlawful deduction and contrary to section 5 of the Payment of Wages Act, 1991. 

Relevant Law.

Section 5 (1) of the 1991 Act states

“An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment,

Section 5.6 of the Act identifies a deduction as follows:

“Where—

                             (a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

                             (b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

                             then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion”.

Properly payable wages.

The definition of wages in section 1(a) of the Act includes payment while on maternity leave.

As a first step in establishing the existence or not of an unlawful deduction, the complainant must demonstrate that the full gross salary of €2259, per month is ‘properly payable ‘to her for the duration of her maternity leave. To demonstrate that the amount of the top up which was €1286 was properly payable, the complainant must, as a preliminary point, identify a contractual entitlement or an entitlement on some other basis as per section 5 (6) of the Act. Thereafter, she must prove that the failure to pay this amount leading to a deduction of €1279 per month over the period 31 August 2021 to 10 February 2022 was a cumulative, unauthorised deduction of €7674, contrary to section 5 (1) of the Act of 1991.

In examining the proposition that it was an unlawful deduction, I must consider the relevant regulations governing entitlement to payment of salary while on maternity leave and whether they were applied correctly or misapplied so as to determine if the salary was properly payable.

It is accepted that the complainant’s contract made no provision for payment of full salary, nor imposed any obligation on the respondent to top up the salary up to any level. Nor can I find any evidence of any agreement verbal or otherwise in existence to pay the complainant the disputed € 1279 per month.

The next question is whether an entitlement to the payment on some other basis as per section 5 (6) of the Act exists to elevate its non-payment to the status of an unlawful deduction.

In arguing that the sum of € €7674 represented an entitlement on the basis that it was the established practice of the respondent and, therefore, amounted to a sum that was properly payable, the uncontested evidence is that the respondent exercised discretion and paid one employee in 2017 a top up payment while on maternity leave and another employee discretionary pay in 2019 in relation to sick leave. The fact that the respondent wrote to the Foreign Ministry in Brazil seeking authorisation demonstrates the absence of an agreement or uninterrupted practice of paying this salary and is evidence of the discretionary nature of the payment.  I do not find that the exercise of this discretion in favour of two other employees while unfair to the complainant necessarily elevates the payment of the €7674 to the realms of a properly payable sum.

Having been unable to find that the sum of €7674 was properly payable, it is therefore deprived of the status of an unauthorised deduction within the ambit of the Act.

I do not find this complaint to be well founded.

CA-00048758-002. Complaint under section 27 of the Organisation of Working Time Act, 1997

This is claim for 14 days of untaken annual leave accrued in the leave year I April 2020-31 March 21.

Relevant Law.

Section19 (1) of the Act of 1997 provides

“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”.

The complainant meets the above requirement.

The times and ‘window’ within which leave must be taken are contained in section 20 of the Act and are as follows:

20.—(1) The times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements and subject— Organisation of Working Time [1997.] Act 1997 PT. III S. 19 [No. 20.] 36

a) to the employer taking into account—

(i) the need for the employee to reconcile work and any family responsibilities,

(ii) the opportunities for rest and recreation available to the employee,

(b) to the employer having consulted the employee or the trade union (if any) of which he or she is a member, not later than 1 month before the day on which the annual leave or, as the case may be, the portion thereof concerned is due to commence, and

(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) n/a”

The complainant had consented to the extension of the leave year as per section 20(b).

Section 41(6) of the Workplace Relations Act 2015 specifies that

 “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.”

While the respondent used the calendar year to determine leave, the only year which I am permitted to use is the statutory year as set out by the Labour Court in DWT 0963 which stated that

“The only leave year which is cognisable for the purposes of determining if an employee received his or her statutory entitlements is that prescribed by the Act itself. That is to say a leave year starting on the 1st of April and ending on the 31st of March the following year”.

I must confine my examination of any alleged infringements occurring only in the relevant statutory leave years.

Cognisable period.

The complaint was lodged on the 22/2/2022. This means that the cognisable period is 23/8/2021- 22/2/2022.

Section 41(8) provides that the cognisable period can be extended by a further 6 months, should the complainant establish reasonable cause in the late presentation of the complaint.

It is noteworthy that up until the 14 January 2022, the complainant had been informed that she had her employer’s agreement to carry the 14 days leave, accrued in the leave year 1/4/2020- 31/3/2021 into 2022.

The 31/8/2021 is the end of the carry over period allowable under the Act and prior to which it is claimed that the complainant was dissuaded from exercising her right to take her leave accrued from 2020-2021.

Working Time Directive

The Organisation of Working Time Act,1997, emanates from Article 7 of the Working Time Directive (2003/88/EC and its predecessor Directive 93/104/EC). The Directive states:

“Annual leave 1. Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice. 2. The minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated.”

Sections 19, 20 and 23 of the Organisation of Working Time Act, 1997 transposed this provision into Irish law.

The matter of accrued leave, how long it survives as a retrievable entitlement and any time constraints on the pursuit of this leave have been addressed in a number of cases submitted to the CJEU

In Case C-684/16 Max-Planck-Gesellschaft Zur Forderung der Wissenschafen e.V. v Tetsuji Shimizu, the CJEU dealt with a refusal of a claim, made in October 2013, for 51 days paid annual leave, accrued over a number of years. The leave had not been taken during the reference period and payment in lieu of leave was denied at the termination of the employment.

The Court asked if the worker should forfeit his right to take the accrued leave where he did not ask to exercise his right to paid annual leave during the reference period concerned, and in the absence of prior verification of whether the employer had, in fact, enabled him to exercise that right, in particular through the provision of sufficient information.

The Court held as follows at paragraphs 45-47 of their ruling:

 “45) To that end, as the Advocate General also observed in points 41 to 43 of his Opinion, the employer is in particular required, in view of the mandatory nature of the entitlement to paid annual leave and in order to ensure the effectiveness of Article 7 of directive 2003/88, to ensure, specifically and transparently, that the worker is actually in a position to take paid annual leave to which he is entitled, by encouraging him, formally if need be, to do so, while informing him, accurately and in good time so as to ensure that that leave is still capable of ensuring for the person concerned the rest and relaxation to which it is supposed to contribute, that, if he does not take it, it will be lost at the end of the reference period or authorised carry-over period.

46) In addition, the burden of proof in that respect is on the employer. Should the employer not be able to show that it had exercised all due diligence in order to enable the worker actually to take the paid annual leave to which he is entitled, it must be held that the loss of the right to such leave at the end of the authorised reference or carry-over period, and in the event of the termination of the employment relationship, the corresponding absence of a payment of an allowance in lieu of annual leave not taken constitutes a failure to have regard, respectively, to Article 7 (1) and Article 7 (2) of the Directive 2003/88.

47) However, if the employer is able to discharge the burden of proof in that regard, as a result of which it appears that it was deliberately and in full knowledge of the ensuing consequences that the worker refrained from taking the paid annual leave to which he was entitled after having been given the opportunity to exercise his right thereto, Article 7 (1) and (2) of Directive 2003/88 does not preclude the loss of that right or, in the event of the termination of the employment relationship, the corresponding absence of an allowance in lieu of the paid annual leave not taken.”

Case C 619/16, Sebastian W. Kreuziger v Land Berlin concerned the latter’s refusal to pay Mr Kreuziger an allowance in lieu of paid annual leave not taken before the end of the employment relationship.

The Court ruled that the national legislation could not remove the employee’s right to paid leave or an allowance in lieu of leave foregone prior to the termination of his employment and in the absence of

“the provision of sufficient information, to exercise his right to leave prior to the termination of that relationship”.

The Labour Court in Legal Aid Board v Theresa McAteer, DWT 2318 considered the application of the aforementioned decisions of the CJEU to the facts of the case before them.  The complainant had accrued 14 days in the 2018-19 leave year and was on sick leave until December 2019. In April 2020 she was informed that these days of annual leave would survive until 21 July 2021. On 9 August 2021 the respondent informed her that the 14 days was no longer available to her on the basis of the 15-month rule.

The court in consideration of Max-Planck-Gesellschaft, concluded on the basis of the evidence that the complainant had received no notification in advance of the 30 June 2020 (the end of the statutory extended period as per section 20.1(c)(iii)), informing her that the 14 days annual leave carried over from the 2018/2019 annual leave year, would be lost if not used by that date. Furthermore, no correspondence was issued to her prior to the decision to retrospectively in July 2021, remove the 14 days annual leave. The court stated:

“It is clear to the Court that in this case the Respondent has not discharged the burden of proof they bear, to show that the Complainant was informed accurately, and in good time, that if she did not take the annual leave within the reference period the annual leave would be lost. On that basis the Court determines that there has been a breach of the Act.”.

The Court restored the 14 days to her.

Application of the law and authorities to the circumstances of this case.

The uncontested evidence is that the complainant applied on 19 July 2021 to take the fourteen days leave during July and August 2021 prior to going on maternity leave in early August. This application was made within the extra 6 months allowable under the Act to an employee. The 14 days were carried over from 2020-2021 with the agreement of the employer. The uncontested evidence is that the respondent on the same date dissuaded her from taking the leave assuring her that she could preserve it until after the completion of her maternity leave. The respondent further confirmed on the 14 December 2021 that she could take the 14 days in 2022, after the completion of her maternity leave which ended on 9 February 2022 February 2022. The respondent did not present evidence to counter this. The respondent did not contest that annual leave entitlements have not been given to the complainant in full and the complainant was permitted to carry over the accrued entitlement. Carrying over leave in relation to accrual of same while on sick leave and unable to take it is different from carrying over leave accrued and not taken.  But the aforementioned decisions of the CJEU protect the right under certain circumstances not to forfeit untaken leave.

 In Max-Planck-Gesellschaft the court held that the employee is the weaker party in the employment relationship and must therefore be protected against any dissuasion by the employer from the exercise of her right to take annual leave. The employer must advise the employee that if they forgo taking leave, they will lose it. In the instant case, the respondent, far from advising the complainant that the accrued untaken leave would lapse, held out the promise of its availability to her in 2022.  The respondent then retrospectively withdrew it without any prior notification in January 2022.

Did the 14 days untaken leave survive into the referable period which is 23 /8/2021- 22/2/22?

In Max-Planck-Gesellschaft the court further held at paragraph 54

“…….. Thus, Member States may not derogate from the principle flowing from Article 7 of Directive 2003/88 read in the light of Article 31(2) of the Charter, that the right to paid annual leave acquired cannot be lost at the end of the leave year and/or of a carry-over period fixed by national law, when the worker has been unable to take his leave (see, to that effect, judgment of 29 November 2017, King, C-214/16, EU:C:2017:914, paragraph 56)”.

The complainant applied for leave in July 2021, was dissuaded from taking leave, and was unable to take annual leave during the period 3 August 2021 to 9 February 22 when she was on maternity leave.

Based on the evidence and the authorities cited, I find that the complainant’s entitlement to recover 14 days of accrued untaken leave is not extinguished by the lapse of a carry-over period.

I find this complainant to be well founded.

The withholding of this leave is also addressed in CA-00048758-003

I require the respondent to restore these 14 days of leave to the complainant with immediate effect which is leave which had been withheld from her in contravention of section 20 of the Act of 1997.

CA-00048758-003. Complaint under section 77 of the Employment Equality Act, 1998

The complainant maintains that she was victimised.

Relevant law.

The definition of victimisation is found in Section 74(2) which provides as follows:

“(2) For the purposes of this Part, victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs”

In retaliation for

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings concerning a claim of discrimination by a complainant,

c) notification of intention to pursue a complaint of discrimination.”.

Before considering if adverse treatment occurred and if so, whether or not it was it connected to the exercise of a protected act, a complainant must meet the provisions in section 74 of the Act.

The Labour Court in the case of Department of Defence v Barrett EDA 1017, interpreting section 74(2),i set out the obligations which a complainant must meet in order  to succeed in a complaint of victimisation:

“1. The Complainant had taken action of a type referred to at s.74(2) of the Acts (a protected act),

2. The Complainant was subjected to adverse treatment by the Respondent, and,

3. The adverse treatment was in reaction to the protected action having been taken by the Complainant.”

In considering whether a complaint of discrimination had been made in a victimisation complaint in the above case the Labour Court stated:

“It is well settled that the protection against victimisation is not limited to situations in which a complaint of discrimination is subsequently upheld. However, the catalyst alleged for the adverse treatment complained of must, in some sense, come within the ambit of one of the protected acts referred to at s.74(2) of the Acts”

Exercising a protected act.

Date of alleged protected act is 16/12/2021.

In Moriarty v. Dúchas DEC-E2003-013 the Equality Tribunal emphasised that the act which results in victimisation must be connected to a reliance on rights set out in section 74(2) of the Employment Equality Acts. The Equality Officer stated

 “It is necessary that a complainant demonstrate the connection between his or her actions in relation to defending entitlements under the Act and the treatment complained of”

The complainant’s evidence and position on her protected act was her submission of a grievance on the 16 December to the Deputy Head of Mission of the Embassy of Brazil, requesting the respondent to reconsider their denial of her request for a top up payment during the period of her maternity leave which lasted from August to 9 February 2022 and was, in her view, payable from 31 August for the duration of her leave. She contrasts the difference in treatment of a male colleague, paid the difference between state benefit and his salary, the discretionary power exercised by the respondent in his favour while on sick leave who had neither a statutory nor contractual right to a top up and refers to being discriminated against for being a woman. In this letter she states,

“I feel discriminated against for being a woman”.

She refers to a “sexist environment.”

She states that she will use the appropriate legal apparatus in either Brazil or in Ireland in pursuit of her complaint.

I find that this statement of the 16/12/2021 conforms to the definition of a protected act as set out in section 74(2) of the Act.

 The adverse or retaliatory treatment occurred on the 11 /1/2022 when the respondent did an about turn and withdrew the permission already granted to her on the 14 December to carry over 14 days of untaken leave. This sudden reversal of a commitment, given to her on several dates from July 2021 onwards that she could carry leave until the following year resulted in detriment. The legitimacy or otherwise of the respondent’s reversal is not the issue. It is the fact that until she lodged the grievance in which she complained of discrimination, the respondent had committed to allow her to add this untaken leave to travel to Brazil in 2022.

It is hard to avoid the conclusion that it was her complaint on the 16 /12/21 which prompted, hot on its heels, the retraction of a commitment, a retraction which resulted in the loss of benefit and amounted to a detriment as the complainant had foregone the leave on the basis of assurances given. Victimisation happens when a worker is treated less favourably because they have asserted their right not to be discriminated against on the basis of their gender by making a complaint.

The respondent’s position was that their position was legitimate, in keeping with Irish statutory entitlements but that is not the point. Observance of statutory obligations does not mean that a detriment did not occur.  I find that a detriment occurred.

His representative denied that it was a retaliatory act, it was merely the respondent stating their position, applicable to all employees on the carrying over of leave.

The respondent’s written evidence indicated that they had made an error in their earlier confirmation to the complainant of permission to carry over leave.

Having considered all the evidence adduced to me, I am satisfied that the complainant established facts of sufficient significance to raise a presumption of victimisation and therefore the probative burden is transferred to the respondent. The respondent did not attend to contest the complainant’s evidence as to what had transpired.

The respondent has failed therefore to rebut the presumption of victimisation.

 It is hard to avoid the conclusion that coming so quickly after her complaint, it does amount to victimisation.

I find that the complaint of victimisation is well founded.

 I order the respondent to pay the complaint the sum of €13,554 which equates to six months’ salary.

CA-00048758-001. Complaint under section 6 of the Payment of Wages Act, 1991

I do not find this complaint to be well founded.

CA-00048758-002. Complaint under section 27 of the Organisation of Working Time Act, 1997.

I find this complaint to be well founded.

I require the respondent to comply with the relevant provision (section 20) and restore the 14 days leave to the complainant with immediate effect.

CA-00048758-003. Complaint under section 77 of the Employment Equality Act, 1998.

 I find that the complainant was victimised pursuant to section 74(2) of the Act.

Section 82-(i)(c) of the Act provides that I can make an order for the effects of the victimisation.

I order the respondent to pay the complainant €13,554 in compensation for the distress caused to her and the effects of the victimisation

Properly payable wages: entitlement to preserve accrued leave; victimisation on gender grounds.