Complainant

Respondent

Parties

Martin  Beirne

Health Service Executive

Representatives

  In person

 Graham Finlay

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-00052041-002

02/08/2022

This complaint is for unpaid annual leave from 2007/8 until the cessation of his employment in 2022.

Under affirmation the complainant gave the following evidence:

1.       The Complainant worked as a Property Manager for HSE Estates

2.       He sought to retire in April 2022 (due to an engagement with a dispute resolution process over unpaid expenses and unpaid annual leave he remained in the employment and eventually retired in October 2022.)

3.       In April 2022 he sought to be paid annual leave and compensation for unpaid TOIL (Time off in Lieu of working hours, in addition to his contracted hours.

4.       He was refused.

5.       His work for the Respondent was a Property Manager. He managed a team of five workers.

6.       He worked independently and had no line management.

7.       This unusual management structure was not of his making but arose out of a decision in 2008 to abolish his role but when no alternative suitable position was found for him, he was retained as a property manager but thereafter worked independently, in the absence of any line management.

8.       He has not received his full entitlement to paid annual leave since 2007 and he is now seeking to be paid what he is owed. By way of a cesser payment.

9.       During the Adjudication hearing he accepted that the WRC has no jurisdiction over payments for TOIL under the OWTA and as a result of this he confined his complaint to the short fall of a statutory annual leave entitlement of 4 weeks per year - since 2007/08.

10.   The fact that he had no line manager did not prevent him from logging into the HSE NISRP system the hours that he worked and the annual leave that he took. No one disputed these records or ever spoke to him about annual leave. The records clearly indicate that in the years 2007- 2022 that he did not receive his full annual leave entitlement. No one advised him that annual leave would not carry over. No one advised him that he needed authorisation from senior management to carry over if they had, he didn’t know who the senior manager was. None advised him that if he did not use his annual leave in a leave year that he would lose it.  Put simply he had no line management. He just did his job as before and carried on. The work was too busy for him to take 4 weeks holiday every year.

11.   The fact that he had no line manager to sanction his annual leave was not of his making.

12.   The short fall in his annual leave each year was due to heavy work demands which were contributed in large part because he had no line management support.

13.   In response to the Respondent’s assertion that his claim for holiday pay is outside the cognisable period namely a leave year plus six months, the Respondent relies on the decision of Adj. 19188 which held that where the employment has ceased there is an entitlement to “cesser pay” where the employer does not take action to ensure that the fundamental right to annual leave is exercised by the employee and where the employee is not advised of any “use it or lose it” rule.

14.   In Adj 19188 the WRC Adjudicator applied the CJEU authorities of KHS v. Shuite (C-214/10); King v. Sash Window Workshop (C-214/16); Max-Planck-gestelleschaft zur Forderung der Wissenschaften eV v. Shimizu (C-684/16); Kreuziger v. Land Berlin (C-619/16) Terveys-Ja Sosiaalialan Neuvottelujargesto (TSN) ry v. Hyvinvointialan Liito Ri (c-609/17 and C-610/17) which held that where the Employer is on notice that annual leave has not been availed unless the Employer warns the worker that the failure to avail of the annual leave will result in it being lost, the leave carries over and remains extant as an accrued entitlement at the end (cesser) of the employment.

15.   The Complainant prepared a schedule of unpaid annual leave losses dating from 2007 until the cessation of his employment in 2022.

16.   The Respondent’s do not dispute his dates because these were inputted on the NISRP system. They are confining their defence to a time limit, which doesn’t apply to a cesser payment.

17.   His short fall of statutory annual leave was 104 days.

18.   He seeks a cesser payment award to reflect the accrual of these unpaid holidays, in circumstances where a heavy work load prevented him from taking the leave that he was entitled to, his employer knew that this was the case because he logged it into the NISRP records, he had no line manager anyone but no one from the Respondent advised him of any Respondent rule that he should be taking his annual leave or that if he did not, it would not carry over and or he would lose it.

The Respondent did not adduce any evidence to counter the specific evidence of the Complainant but raised legal arguments on jurisdiction. These arguments were as follows;

1.       A claim under the OWTA is limited to unpaid holidays within the cognisable period, ie those accrued within a leave year plus six months prior to bringing his complaint to the WRC.

2.       The right to carry-over annual leave until the cessation of employment only occurs where annual leave is not permitted to be taken, which is not the case in the present case. The Complainant was in charge of when he took his annual leave.

3.       In the accepted unusual circumstances that the Complainant worked from 2007 onwards – where he worked independently and did not have any line manager it is accepted that there was no effective line management in place. But with no procedure in place to sanction when or indeed if he took his holidays, it became a matter for the Complainant to take his own annual leave as he chose. If he chose not to take that leave that was a matter for him. It was not denied to him by any manager and therefore if he failed to take annual leave, he was the sole determiner of that.

4.       Department Circulars require the carry-over of leave to be sanctioned by a worker’s line manager. This permission was never sought nor obtained.

5.       The Complainant originally intended to cease his employment in May 2022 and his claim for untaken annual leave only arose in April a month prior to his planned retirement date in May. He had never raised this before.

6.       His claim from unpaid annual leave was at all times disputed by the Respondent from April 2022 on until when the Complainant stopped work on 20 September 2022 and ended his employment on 10 October 2022.

The first issue to address is the fact that the Complainant resolved a long-standing repayment to him of unpaid travel and subsistence and nothing to do with the complaint which is the subject of this adjudication. The fact that he received €80,000 of unpaid travel and subsistence is only relevant to show that for a significant amount of time the Complainant carried a debt for travel and expenses that should have and eventually was discharged by the Respondent.

Position of the Parties

This complaint solely concerned cesser pay and whether the Complainant was entitled to be paid unpaid annual leave which accrued from 2007 when he requested it in April 2022 as he was planning to retire in May 2022.

The Complainant contends that he was entitled to be paid a cesser payment under section 23 (1) of the OWTA, ie an amount equal to the loss of annual leave that he suffered, which he contends goes back to losses from 2007 because (applying Kreuizger v. Land Berlin and Max Planck v. Shimizu) no line manager advised him that his annual leave could not carry over (he had no line manager at all) and no one advised him that unless he took the leave, he might lose it. In such circumstances where he did not cause this unusual, somewhat detached, working arrangement he should not be prejudiced by this.

The Respondent contends that he is not entitled to a cesser payment and that his entitlement is limited to that permitted by section 20(c) of the OWTA (a leave year plus 6 months) which would only permit an adjudication on annual leave losses in the year 2021/22

Findings

The decisions of Kreuizger v. Land Berlin and Max Planck v. Shimizu was applied by the WRC in Adj. 19188 [A Facilities Coordinator v. A Bakery]. I have found both the CJEU authorities and Adj. 19188 to be persuasive and helpful to assist with this decision.

In 2008 on in the context of a restructure of the HSE Estates section the Complainant’s role as a Property Manager was recommended to be abolished. However as no suitable alternative position for the Complainant could be found, he expected to be made redundant but this did not occur. Instead, the Complainant was maintained as Property Manager and given the role of supervising five staff in a section of HSE Estates but without any line management, reporting structure or any effective oversight. This resulted in the Complainant not being eligible for promotion, training or career advancement. But it also meant that on a day to day basis, he had no one to report to and therefore he had no one to sanction if and when he took annual leave. This unusual situation pertained until he applied to take retirement in April 2022 at which point he raised the fact that he had outstanding annual leave that he had carried over each year from 2007.

Adj. 19188 [A Facilities Coordinator v. A Bakery] is clear in its finding. Applying Kreuziger, an employer is required (in view of the mandatory fundamental right to paid annual leave as per Article 7 of Directive 2003/88) to ensure that the worker is both given the opportunity to take paid annual leave and if it is to be lost through non-use, that the worker must be put on notice of this in advance of its loss.

This did not occur in any respect. I have heard no evidence from either party that even any conversation took place between the Respondent and Complainant about him not taking enough annual leave, the carry-over of annual leave, whether it could be lost if he didn’t take it,  indeed anything about annual leave  at all.

In the present case, there was no communication between the Respondent and the Complainant to ensure in the first instance that he was taking his annual leave entitlement or in the alternative that if he did not take the leave, that it would not carry over or he was at risk of losing it.

The defence that the Respondent relies on is that it was up to the Complainant to manage and that he failed to do that. And yet the annual leave that he did take, was paid, so it was accepted by the Respondent. But no one in the Respondent management advised him that if he did not take it, that it could be lost.

There is reference in the Respondent submissions to Department of Health circulars that the Respondent contends restricts the carry-over of annual leave to only where it is authorised. But the obvious question arises, who would have authorised it or indeed refused to authorise, if he had no line management in place? It is salient that the Respondent did not identify any individual who they say that the Complainant should have raised this with. And perhaps this is because the onus of proof for this discussion lay not with the Complainant but the Respondent. The authorities state that the onus was on the Employer to advise that non availing of one’s statutory annual leave can result in loss of it. The authorities hold that because annual leave is a fundamental Directive Right, the right can only be lost if the worker is placed on specific notice by his employer. The trouble from the Respondent’s point of view is that there appears to have been very limited management of the Complainant’s work at all, not just in respect of the management of his holiday taking. 

I am satisfied, in the absence of any evidence to the contrary that the reason that the Complainant did not avail of his full annual leave complement each year was due to work demands. I am satisfied that this complaint is well founded. I am satisfied that the annual leave from 2007 carried over and at the time of his intended cessation (in May 2022 – even though this was extended to October 2022) that the Complainant was entitled to a cesser payment, that being the untaken annual leave that he accumulated during his employment, which was sought and was payable at the original intended cessation date of the Complainant’s employment (May 2022). I am satisfied that this WRC complaint, which issued in August 2022, was brought within 6 months of that date. The fact that his employment was then extended to October 2022 during which outstanding pay disputes between the parties were engaged upon, does not impact the cesser payment being sought and being payable when he originally intended to cease his employment, in May 2022.

I find that the lack of any effective line management of the Complainant resulted in him not losing his accumulated and untaken annual leave and this carried over to the end of his employment. The Respondent is not entitled to contend that it was up to the Complainant to manage his own annual leave because that does not meet their obligations arising from Article 7 of the OWT Directive and the CJEU decisions.  

If a manager had discussed the matter with the Complainant and advised him that if he did not use his annual leave entitlement that he would lose it, the outcome of this decision would be other than it is. But that did not happen, or if it did, that hasn’t been evidenced. In respect of what has been found to be a fundamental right to annual leave – both pursuant to the Directive and the Charter – as in Adj 19188, I am bound to ensure that the Complainant is not deprived of this right to annual leave.

I find that the Complainant’s annual leave was not lost and I find that it carried over and is now due as cesser pay at the end of his employment.

Calculation of Accrued Annual Leave from 2007.

To calculate the cesser payment requested the Complainant to provide me with the shortfall number of annual leave days in each year that he worked, from 2007/8 until 2022. I then asked the Respondent to provide me with the Complainant’s daily rate of pay in each of those years.

I calculate the loss of annual leave (a total of 104 days) to be as follows:

Year                           Shortfall (Statutory Annual Leave)  Daily rate of pay      Loss

2007/08                    5.5 days                                                     €292.53                     €1608.91

2008/09                    6 days                                                         €302.15                    €1812.90

2009/10                    0 days                                                         €319.73                    €    00.00

2010/11                    1 day                                                           €300.93                    € 300.93

2011/12                    3.5 days                                                      €300.93                    €1053.25

2012/13                    11 days                                                       €295.18                    €3246.98

2013/14                   10 days                                                        €288.26                    €2882.60

2014/15                    9 days                                                          €288.26                   €2594.34

2015/16                    7 days                                                          €288.26                   €2017.82

2016/17                    7 days                                                          €292.43                   €2047.01

2017/18                    9 days                                                          €308.06                   €2772.54

2018/19                    7 days                                                          €308.06                   €2156.42

2019/20                    8 days                                                          €319.73                   €2557.84

2020/21                    10 days                                                        €325.46                   €3254.60

2021/22                    10 days                                                        €336.64                   €3360.64

                                                     Total Loss of Accrued (Statutory) Annual Leave: €31 666.78

I find this complaint in respect of cesser pay, accruing from unpaid annual leave, is well founded.

I order redress to the Complainant in the sum of €31 666.78.

Organisation of Working Time Act – Cesser pay