Adjudication Reference: ADJ-00041007
Parties:
| Complainant | Respondent |
Parties | Ion Covas | KMK Metals Recycling Ltd. |
Representatives | Complainant did not attend | Jerry Lane, Peninsula |
Complaint:
Act | Complaint 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-00052250-001 | 15/08/2022 |
Date of Adjudication Hearing: 23/01/2024
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Procedure:
This complaint was submitted to the WRC on August 15th 2022 and, in accordance with Section 41 of the Workplace Relations Act, it was assigned to me by the Director General. A remote hearing was arranged for January 23rd 2024 at 10.30am, for the parties to present evidence in respect of the complaint; however, the complainant did not attend. At 10.40am the case officer phoned him at the number he gave on his complaint form, but there was no reply. The respondent, KMK Metals Recycling Limited, was represented at the hearing by Mr Jerry Lane of Peninsula. A member of the HR department, Ms Joanne Burke also attended.
The complainant did not contact the WRC in advance to explain that he would not attend the hearing and he has not submitted any evidence to explain his absence or to request a new hearing date. Based on these facts, I have reached the conclusion set out below.
Findings and Conclusions:
From the respondent’s submission, I understand that the complainant has been absent from work due to illness since July 2020. On August 3rd 2022, he sent an email to the HR department requesting holiday pay, based on the number of days of annual leave that had accrued during his absence. Ms Joanne Burke of the HR department explained that he could not be on sick leave and annual leave at the same time and that he would be paid for his untaken holidays when he returned to work. On August 15th 2022, the complainant attended a meeting with Ms Burke, at which she clarified the situation. On the same day, he submitted this complaint to the WRC. In a submission he sent in preparation for the hearing, Mr Jerry Lane of Peninsula referred to s.19(2) of the Organisation of Working Time Act 1997, which provides that, A day which would be regarded as a day of annual leave shall, if the employee concerned is ill on that day and furnishes to his or her employer a certificate of a registered medical practitioner in respect of his or her illness, not be regarded, for the purposes of this Act, as a day of annual leave. The effect of this provision is that, if an employee becomes ill on a day of annual leave, then, that day will not be regarded as a holiday, and will be considered as a day of absence due to illness. Mr Lane referred to the amendment to s.23 of the Organisation of Working Time Act which provides that, 1. Statutory annual leave accrues during absence due to illness. 2. When an employee who has been absent due to illness resigns or is dismissed, and, depending on whether their employment ends during the first 12 months following the end of the year in which they went absent or, during the final three months of a period of 15 months after a leave year in which they have been absent, they will be entitled to payment in lieu of untaken annual leave up to certain limits. These provisions are outlined in more detail in ADJ-00030160, A Security Guard and A Security Company. As the complainant remains an employee of the respondent, in accordance with s.19 of the Organisation of Working Time Act, he may not receive pay in lieu of his accrued annual leave and any such payment is due only if he resigns or is dismissed. |
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.
I decide that this complaint is not well founded. |
Dated: 30/01/2024
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Key Words:
Pay for annual leave accruing during absence due to illness |