Complainant

Respondent

Parties

Frank O'Donnell

Letterkenny University Hospital

Complainant

Respondent

Anonymised Parties

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Representatives

Fiona Browne Browne & Co

 Paul Hume

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-00050697-001

16/05/2022

The complainant alleges that he is entitled to accumulated leave during a period of cocooning during Covid, unpaid annual leave during a period of sick leave, and that he was constructively dismissed by the respondent.  The Hearing took place on 12th September 2023 and 12/13 February 2024.

Evidence was given under oath/affirmation by Mr Frank O’Donnell, the Complainant and by Mr Peter Byrne, Facilities Manager for the respondent.  Evidence was subject to cross examination.  Various documents/submissions received were considered by me.

CA-00050697-001 - Paid holiday/annual leave entitlement – November 2020 – June 2022

At all material times hereto, the Complainant worked in housekeeping at Letterkenny University Hospital under the Domestic Services Department as a Domestic Assistant having been employed by the Respondent since 1992.

The Respondent is a hospital providing healthcare and other medical services as part of the Saolta Health Care Group under the direction of the Health Service Executive.

The Complainant commenced employment with the Health Service Executive in or around February 1992 in the Catering Department. The Complainant thereafter worked as a Clerical Officer and was transferred to his current role in Domestic Services on or about 17th December 2012, wherein he remained up until the cessation of his employment in or about April 2023.

The Complainant was deemed to be a very high risk category in respect of the COVID-19 disease and in accordance with the HSE Circular 065/2020. The Complainant was subsequently placed on cocooning leave in line with the recommendations of the Complainant's treating consultant physician at the time, The Complainant was to remain out of the workplace and was noted as being fit to work from home.

The Respondent submits that it had no alternative work for the Complainant where he could work from home. However, the Complainant contends that the Respondent at no time made any effort whatsoever to provide the Complainant with alternative work duties which he could carry out whilst cocooning at home.

ANNUAL LEAVE AND PUBLIC HOLIDAY PAY

It is contended by the Respondent that annual leave had accrued during the period in which the Complainant was cocooning at home and that the said annual leave entitlements had to be taken withing the said leave year. However, it is the Complainant's submission that at no time did the Respondent make the Complainant aware that during the period of cocooning that annual leave was accruing and/or had to be taken during the annual leave year. At no time did the Respondent ever indicate to the Complainant that he was under an obligation to take the annual leave or that the annual leave that had been accruing whilst the Complainant was cocooning was being randomly assigned and/or allocated to be used. At no time was there any agreement between the Complainant and the Respondent in relation to the accrual and/or allocation of annual leave during the period of cocooning. The Respondent was not permitted to direct that the Complainant utilise his annual leave or that be allocated as having been spent during the extended period of time which the Complainant was cocooning.

For the above reasons, the Complainant maintains a complaint for the annual leave which accrued during the period of cocooning and which the Complainant has been sporadically reimbursed in lieu of the annual leave by the Respondent in the time since. The Complainant contends that compensation in respect of annual leave which is owed to the Complainant arising from the time in which he was cocooning and/or arising from the time in which the Complainant had returned to work following April 2022 and was on certified sick leave thereafter is as follows;

313.4 hours per year at €16.89 per hour

2021-2022-

313.4x € 16.89 = €5293.33

2022-2023

54.45 x €16.89- €919.79

Total €6213.12

Furthermore, the Complainant submits that the Respondent has failed, refused and/or neglected to pay the Complainant for the pay due and owing as a result of the public holidays during which the Complainant was at work and/or available to work and which under the Organisation of Work and Time Act 1997 the Complainant has an entitlement to such payments totalling €693.

It is submitted on behalf of the Complainant that the Respondent its servants or agents failed, refused or neglected to pay the Complainant the correct amount of annual leave / public holiday pay that had accrued to the Complainant since January 2019 until the date of cessation of the Complainant's employment and that there are outstanding payments due to the Complainant in respect of same.

It is submitted on behalf of the Complainant that he is entitled, pursuant to Section 19 of the 1997 Act, to have his annual leave / holiday pay calculated by the method set out in Section 19 which affords the Complainant the greatest entitlement.

Mr. O’Donnell commenced employment with the HSE in January 1992 in the Catering Department.  He transferred to Domestic services on 17th December 2012 where he remained until his retirement in April 2023.   He was ordinarily assigned cleaning duties within the medical wards and was supervised by a domestic supervisor, who in turn is line managed by the Facilities Manager. 

Whilst he has had 31 years of employment with the HSE, Mr O’Donnell has had multiple periods of absence from work.  Since the year 2000, when electronic records of absenteeism became available, Mr O’Donnell has had 4255 absence days from work on sick leave plus an additional 459 days on Special Leave with Pay during covid (November 2020 – April 2022).

Some of those absences have been prolonged periods, one of which was over 11 years (approx. 3000 days). He availed of the Injury at work grant, for a back injury for that period.  Prior to his retirement in April 2023, Mr. O’Donnell had been on sick leave since 26th October 2022. This episode of absence was related to reported work-related stress. 

Mr. O’Donnell was deemed “HCW in the very high risk” category in November 2020 and was subsequently placed on Cocooning available to work as per HSE Circular 065/2020- absence code 0406 Cocooning available to work which stated;

 High Risk & Very High Risk Categories

 2.2 What to do if an employee is identified as being at very high risk (extremely vulnerable) and is advised to cocoon? 

Employees should declare to their employer if they believe that they are at very high risk of COVID-19 The employer’s Occupational Health service should be consulted for employees in the very high risk category, or to determine if an employee falls into this category. 

Mr. O’Donnell’s treating Consultant Physician at the time concurred with the Mr. O’Donnell’s OH report.  Mr. O’Donnell’s OH report deemed him to “remain out of the workplace but was fit to work from home”.  The employer had no alternative work for Mr. O’Donnell where he could work from home. 

 During this period of time, there was accrual of annual leave and in order to the facilitate same, this leave had to be taken within the leave year.  As per correspondence from Ms. Yvonne Harkin on 29.11.21 Mr. O’Donnell had accrued 117 hours for leave year 2020/2021 (12 mth period Nov 20 -21) hours and was allocated his annual leave during the period he was cocooning available to work.  The HSE Terms & Condition of employment also state that “the time at which annual leave is taken is at the discretion of the employer”.  Section 20(1) of the Organisation of Working Time Act provides that the times at which annual leave are granted are determined by the employer.  The onus is on the employer to ensure that employees avail of their annual leave entitlement in the leave year to which it relates.  Had Mr. O’Donnell not been off on SLWP, he would have been in the workplace, therefore he was allocated his annual leave accordingly. As with other staff members who were off at this time, the employer utilised their annual leave as this category of staff were off for extended period of time during the Covid pandemic.  Mr. O’Donnell did not respond to Ms. Harkin’s correspondence.   

 As noted below Mr. O’Donnell remained on this special leave with pay for a period of 459 days.  There was also regular communication during this absence with Occupational Health regarding Mr. O’Donnell as per recommendation from the HSE Circular.

This claim of Mr. O’Donnell’s refers to him alleging there was an error in his calculation of:

1)            Payment of holidays/annual leave entitlement

2)            Receipt of public holiday entitlement

3)            Compensation for loss of public holiday entitlement on leaving the organisation

Upon retirement on 12th April 2023, the employer did calculation of annual leave owed which equated to 32.3 hours which Mr. O’Donnell was compensated on his retirement.  Mr. O’Donnell is due a further 15.4 hours for public holiday for period 1st April 2022 – 19th November 2022.  This will be compensated shortly.  

The complainant in his submission claimed the following was owed to him in respect of unpaid annual leave and public holidays;

313.4 hours per year at €16.89 per hour

2021-2022-

313.4x € 16.89 = €5293.33

2022-2023

54.45 x €16.89- €919.79

Total €6213.12

At the hearing he clarified that 313.4 hours should in fact be 287 and that the figure of 54.45 should be 52.

The complainant is also claiming public holidays for the period of time when he was cocooning and on sick leave which he quantified at 18 days.

The advice given to LUH on how to manage AL during covid was that; they should ensure that employees took their statutory minimum entitlement both from a welfare viewpoint and to avoid an excessive accumulation of untaken leave.  The advice also pointed out that the times at which annual leave may be taken are determined by the employer according to the OWT Act.  The advice also states that Employees are not entitled to days in lieu of any public holidays that occur while in receipt of SLWP

While cocooning at home employees of the respondent were expected to perform work.  In this case the respondent determined that no suitable work could be assigned to the complainant.  Other employees cocooning, who may have been carrying out work from home, were allocated times for the annual leave on a similar basis to what applied to the complainant.  I can see no reason why the complainant while at home not working (through no fault of his own) and continuing to receive pay should accumulate annual leave during this period to carry over on his return to the workplace or to be paid for on cessation of his employment.  I therefore find that the complaint in relation to accumulation of leave during the period of cocooning is not well founded.

In relation to the claim for accumulation of annual leave during periods of sick leave  I accept the evidence of the respondent that these were paid in full with the exception of periods of unauthorised absence. I also accept the commitment of the respondent to pay 15.4 hours outstanding at the date of the first hearing.  This claim is therefore not well founded.

CA-00050697-001 The complaint is not well founded

Accumulation of annual leave, public holidays, while cocooning and while on sick leave