Complainant

Respondent

Parties

Anastasiia  Kerdina

 Techrete Ireland Limited

Representatives

  Self-Represented

Ruth Mylotte B.L. instructed by Jason McMenamin of A&L Goodbody LLP

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-00057854-004

21/08/2023

The Complainant has been employed by the Respondent since the 28th November 2022 as a BIM/3D Modeller. The Complainant referred her complaint under the Organisation of Working Time Act 1997 (hereinafter after referred to as “1997 Act”) to the Workplace Relation Commission (hereinafter referred to as “the WRC”) on the 21st August 2023 wherein she claims that her request for annual leave was refused by the Respondent.

The Complainant stated that on the 10th January 2023 she completed a holiday request form and furnished it to her manager, Mr. Sean Twomey. She also emailed the Group HR Manager, Ms. Orla Dunne, asking if she could take four days annual leave from the 7th to the 10th February 2023. She stated that she was not sure if she was entitled to annual leave at that time as she had taken four days annual leave between the 22nd December 2022 and the 3rd January 2023. According to the Complainant after submitting the holiday request form she had a meeting with Mr. Twomey who advised her verbally on the 12th January 2023 that she was not entitled to annual leave while she was on probation. The Complainant stated that she took annual leave in June 2023 and that she took this annual leave without any difficulty.

Under cross-examination the Complainant stated that her contract of employment provided for 21 days annual leave, she had taken four days annual leave during the Christmas period and therefore she believed that she had 17 days remaining which she could take at any time. She accepted that she knew that she might not be entitled to annual leave when she made the request. She further accepted that she went on annual leave in December 2022 while she was on probation and she confirmed that she had no issue with the clause in her contract of employment which stated that she may be required to take annual leave during periods of plant shutdown. The Complainant accepted that she never informed the Respondent that she needed to go to the Ukraine to collect documents and that she only mentioned in January 2023 that the purpose of the trip to the Ukraine in February 2023 was to attend a dentist.

The Complainant gave evidence that if she had received a document from the Respondent stating that she had not accrued leave days at the time of her request she would not have pursued a complaint to the WRC under the 1997 Act however she did so because she was informed by Mr. Twomey that she could not take annual leave because she was on probation. The Complainant accepted that the first time she alleged that her request had been refused on the basis that she was on probation was in an undated letter received by the WRC on the 21st August 2023. Furthermore, she accepted that whilst she had contacted Ms. Dunne on a number of occasions regarding her request for annual leave she never went back to Ms. Dunne following her conversation with Mr. Twomey on the 12th January 2023 and she engaged in no further communication with the Respondent regarding her request for annual leave in February 2023.

Orla Dunne – Group HR Manager

Ms. Dunne gave evidence that the Complainant commenced employment with the Respondent on the 28th November 2022 and that she signed a contract of employment at that time. She confirmed that all staff were required to take annual leave during periods of plant shutdown and that this was an express term of the Complainant’s contract of employment. There was a period of shutdown between the 22nd December 2022 and the 3rd January 2023 during which the Complainant was paid four days annual leave. The Complainant did not raise any objection to taking annual leave at this time and she did not indicate to the Respondent at the time that she wished to travel home to the Ukraine either during the period between the 22nd December 2022 and the 3rd January 2023 or in February 2023.

Ms. Dunne stated that she received an email on the 10th January 2023 from the Complainant wherein the Complainant stated that she wished to travel to the Ukraine in February 2023 to attend the dentist. A subsequent email stated that she wished to take four days annual leave between the 4th and 7th February 2023 and she queried whether it would be possible to get paid for these days as she had taken holidays over the Christmas period. Upon receipt of the email communication Ms. Dunne spoke to the Complainant’s Manager Mr. Twomey who confirmed that the Complainant had taken all of her annual leave entitlement accrued. Ms. Dunne gave evidence that employees on probation are entitled to take annual leave subject to having accrued annual leave entitlement.

Under cross-examination Ms. Dunne confirmed that upon receipt of the emails from the Complainant she spoke with Mr. Twomey as he was responsible for communicating with the Complainant regarding her annual leave. Ms. Dunne stated that she did not reply to the Complainant’s last email as it was her understanding that Mr. Twomey was communicating with the Complainant regarding her annual leave request.

Sean Twomey – Drawing Office Manager

Mr. Twomey gave evidence that he was the Complainant’s Manager. He confirmed that he received the Complainant’s holiday leave request form and that he spoke with Ms. Dunne regarding the request and the content of the emails which she had received from the Complainant on the 10th and 11th January 2023. He stated that he went back to the Complainant to say that she had no annual leave entitlement accrued at that time. The Complainant advised him that she wished to return to the Ukraine to attend the dentist. At no time did the Complainant state to Mr. Twomey that she had to retrieve documentation from the Ukraine. He gave evidence that he believed that he spoke with the Complainant on either the 10th or the 11th January 2023 regarding her holiday request as he did not usually let holiday requests go unanswered.

Mr. Twomey did not recall having meeting or a conversation with the Complainant on the 12th January 2023 and he denied that he ever informed the Complainant that she was not entitled to annual leave because she was on probation. He stated that employees on probation are entitled to annual leave once they have accrued entitlement. He stated that the holiday request was denied at the time as the Complainant had no unused accrued annual leave entitlement. He gave evidence that the Complainant requested annual leave at a later date and that the request was approved and the Complainant took annual leave without any issue.

In making these findings, I have considered the documentation submitted by the parties, the oral evidence adduced at the hearing summarised above and the oral and written submissions made by and on behalf of the parties at the hearing.

Relevant Law:

Annual Leave Entitlement

Section 19 of the 1997 Act outlines that an employee’s annual leave entitlement is based on the amount of time that they have worked during the year as is calculated in three ways:

(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)

Times and Pay for Annual Leave

Section 20(1) of the 1997 Act deals with the times at which annual leave is granted to an employee and this is determined by the employer subject to a number of provisions:

(a)   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 one 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 within the leave year to which it relates or, with the consent of the employee, within 6 months thereafter.

(2) The pay in respect of an employee’s annual leave shall –

(a) be paid to the employee in advance of his or her taking the leave,

(b) be at the normal weekly rate or, as the case may be, at a rate which is proportionate to the normal weekly rate, and ….”

Section 2 of the 1997 Act defines “the leave year” as a year beginning on any 1st day of April.

Time Limits

Sections 41(6) and 41(8) of the Workplace Relations Act 2015 set out the relevant time limits for referral of complaints to the WRC; a complaint must be presented within six months of the date of contravention to which the complaint relates, which may be extended to 12 months where it is established that the failure to present the complaint within six months was due to reasonable cause.

Redress:

Section 27(3) of the 1997 Act provides:

A decision of an adjudication officer under Section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely—

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the employee's employment.

Findings:

The complaint under the 1997 Act was referred to the WRC on the 21st August 2023. By reason of the definition of a leave year in the 1997 Act and the time limits in the 2015 Act as set out above, the cognisable period covered by this complaint is the leave year commencing on the 1st April 2022 to the 31st March 2023.

The evidence before me was that Complainant’s normal hours of work were 37.50 hours per week Monday to Friday. The Complainant commenced employment with the Respondent on the 28th November 2022. She accepted in evidence that she took and was paid four days annual leave during the period from the 22nd December 2022 to the 3rd January 2023. Whilst the Complainant described this period as a “forced shutdown”, when questioned by the Adjudication Officer the Complainant confirmed that plant shutdown periods were provided for in her contract of employment, that she had received notice in advance that there would be a period of shut down, that she was paid four days holiday pay and that she did not have a complaint in respect of this period of leave or the circumstances giving rise to same.

It was common case that on the 10th January 2023 the Complainant requested annual leave to be taken in February 2023 and that on the 11th January 2023 she confirmed that she was seeking four days from the 7th to the 10th February 2023. It was also common case that at the time of the request the Complainant informed the Respondent that she was seeking annual leave in order to return to the Ukraine to attend the dentist and that the request was denied. It was accepted by the Complainant that the hearing before the WRC was the first occasion on which she stated that she wished to return to the Ukraine in order to retrieve documentation. Under cross-examination her evidence was that “the dentist is more important than documents.”

The Complainant’s evidence was that her request for annual leave was refused on the basis that she was on probation at the time. Mr. Twomey vehemently denied that he informed the Complainant, whether on the 12th January 2023 or at all, that she was not permitted to take annual leave because she was on probation and he gave evidence that the request was denied on the basis that the Complainant did not have any unused accrued annal leave entitlement.

Under cross-examination the Complainant accepted that the first time she alleged that her request had been refused on the basis that she was on probation was in an undated letter received by the WRC on the 21st August 2023. Furthermore, she accepted that whilst she had contacted Ms. Dunne on a number of occasions regarding her request for annual leave she never went back to Ms. Dunne following her alleged conversation with Mr. Twomey on the 12th January 2023 and she engaged in no further communication with the Respondent regarding her request for annual leave in February 2023.

I find it noteworthy that having engaged in email communication with Ms. Dunne on the 10th and 11th January 2023 regarding her annual leave request the Complainant never engaged further with her after Mr. Twomey is alleged to have refused the annual leave request on the basis that she was on probation and that the first time a complaint was made in this regard was on the 21st August 2023 to the WRC.

Taking account of the evidence of the Complainant and the witness on behalf of the Respondent and the oral submissions and documentation presented on behalf of the parties I find that the Complainant’s evidence that the Respondent refused her request for paid annual leave from the 7th to the 10th February 2023 on the basis that she was on probation lacked credibility and I resolve the conflict in evidence in favour of the Respondent. For the avoidance of doubt, I find that the fact that the Complainant was on probation at the time of the request was not a matter taken into consideration by Ms. Dunne and Mr. Twomey when the request for annual leave in February 2023 was denied and that the only matter taken into consideration was whether the Complainant had any unused accrued annual leave entitlement.  

It was agreed between the parties that the Complainant’s statutory entitlement was calculated on the basis of 1.6 days for each month worked in the leave year. The Complainant’s statutory entitlement to paid annual leave in respect of the period from the commencement of employment on the 28th November 2022 until the date of her proposed annual leave on the 7th February 2023 amounts to four days. It was common case that the Complainant was paid for four days annual leave during the period between from the 22nd December 2022 and the 3rd January 2023.  

I find that the Respondent granted the Complainant her statutory paid annual leave entitlement and therefore find that the complaint is not well-founded.

For the reasons set out above I find that the complaint is not well founded.

Annual leave entitlement