ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00050541
Parties:
| Complainant | Respondent |
Parties | Annette Condon | Dr. Jacobus Engela |
Representatives | Grainne Walsh Irish Nurses & Midwives Organisation | Dr. Jacobus Engela |
Complaint:
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-00061893-001 | 01/03/2024 |
Date of Adjudication Hearing: 10/06/2024
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015andthe Organisation of Working Time Act 1997, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant was employed as a Staff Nurse in the Respondent’s medical practice and was made redundant on 20 November 2023. She seeks payment for annual leave accrued and not compensated for at the end of her employment.
Summary of Complainant’s Case:
The Complainant’s representative made written and oral submissions covering the history of the case. Much of the narrative contained the detail of a redundancy settlement made between the parties which contained a table of payments. The fact that payment for annual leave accrued and not taken was omitted from the table of settlement was brought to the attention of the Respondent. No response was forthcoming. The Complainant worked a 3-day week, totalling 21 hours per week. Calculation of annual leave accrued in the period 1 January 2023 to 20 November 2023 amounts 74 hours.
The Complainant seeks payment for 74 X €29.76 for the annual leave accrued.
Summary of Respondent’s Case:
Following the hearing, the Respondent submitted voluminous documents and a lengthy submission outlining his position. He referred to the agreement reached between the parties and refuted the claims made by the Complainant. He stated that there were numerous incorrect facts and accusations, submitted by the INMO on behalf of the Complainant.
He attached a number of documents and statements summarised as follows:
A statement by the secretary in the practice, with the primary responsibility for keeping a record of all the employees’ hours worked (HW), annual leave (AL) and sick leave (SL).
The method of calculating AL accrued.
Records of the different categories of leave for each employee, for 2021, 2022 and 2023. (Employee’s names redacted, except the Complainant)
The Complainant’s payslips for the year of 2023.
Copy of the Occupational health specialist report, with a note of the date received (by e-mail)
Copies of the medical certificates received from the Complainant’s General Practitioner.
Copy of page 6 of the INMO submission, reflecting a calculation of an €2211.00 claim.
Additional correspondence from the Complainant to the INMO, forwarded to the WRC, and received by e-mail from the WRC on 17/06/2024.
Findings and Conclusions:
I note the position of the Respondent in relation to the agreement made between the parties on the cessation of the Complainant’s employment. However, my statutory obligation is to investigate the complaint made by the Complainant in relation to her claim for compensation for annual leave accrued and not taken at the end of her employment as provided for in the Organisation of Working Time Act 1997.
The Act provides:
23(1)(a) |
Where – (i) an employee ceases to be employed, and |
(ii) the whole or any portion of the annual leave in respect of the current leave year or, in case the cesser of employment occurs during the first half of that year, in respect of that year, the previous leave year or both those years, remains to be granted to the employee, | |
the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave. |
The law is clear on the matter and any issue outside of this entitlement is not a matter for investigation in this instant case.
I find that in accordance with the provisions of Section 23 (1) of the Act, the Complainant is entitled to compensation for the annual leave due at the end of her employment. I find the complaint to be well founded. As provided for in Section 27 of the Organisation of Working Time Act 1997, I require the Respondent to pay to the Complainant the sum of €2,202 being the monetary value of the leave not taken, along with €1,000 compensation for the breach of the Act.
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 27 of the Organisation of Working Time Act 1997 requires that I make a decision in accordance with the relevant redress provisions under that Act.
I have decided that the complaint is well founded, and I require the Respondent to pay to the Complainant the sum of €2,202 for the annual leave accrued, and the sum of €1,000 compensation for breach of the Act.
Dated: 27th August 2024.
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Key Words:
Organisation of Working Time Act, annual leave accrued and not taken, compensation. Well founded. |