ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00045130
Parties:
| Complainant | Respondent |
Parties | Katarzyna Makarewicz | Beechwood House |
Representatives | Self-represented | David Gaffney, Gaffney Solicitors |
Complaints:
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-00055850-001 | 31/03/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00055850-004 | 31/03/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00055850-005 | 31/03/2023 |
Date of Adjudication Hearing: 11/10/2023,21/03/2024
Workplace Relations Commission Adjudication Officer: Ewa Sobanska
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
At the adjudication hearings, the parties were advised that, in accordance with the Workplace Relations (Miscellaneous Provisions) Act 2021, hearings before the Workplace Relations Commission are now held in public and, in most cases, decisions are no longer anonymised. The parties are named in the heading of the decision. For ease of reference, the generic terms of Complainant and Respondent are used throughout the text and the Respondent’s employees are also referred to by their job titles.
The parties were also advised that the Workplace Relations (Miscellaneous Provisions) Act 2021 grants Adjudication Officers the power to administer an oath or affirmation.
Background:
The Complainant referred her claims to the Director General of the WRC on 31 March 2023 alleging that she did not receive her annual leave entitlements and public holiday entitlement, and that she was unfairly dismissed.
A hearing for the purpose of the investigation of the Complainant’s claims was scheduled for 11 October 2023 at 12pm. Correspondence informing the parties of the arrangements for the hearing issued on 5 September 2023. The Complainant attended the adjudication hearing on 11 October 2023. There was no attendance by, or on behalf of, the Respondent. However, on the morning of 11 October 2023 the WRC received an email from the Respondent’s representative requesting an adjournment on the basis that the Respondent’s representative was unwell and unable to attend the hearing. The WRC sought further details regarding the adjournment application. The Complainant was informed that in the event that a reasonable explanation is provided for the Respondent’s non-attendance, the hearing would be re-scheduled.
On 25 October 2024 the WRC issued correspondence informing the parties of the re-scheduled hearing to take place on 6 December 2023. On 4 December 2023, the Respondent’s representative applied for a postponement on the basis that he was unwell and unable to attend. The postponement was granted.
On 28 February 2024 the parties were notified of the arrangements for the hearing to be held on 21 March 2024. The Respondent’s representative attended the hearing. There was no attendance by, or on behalf of, the Complainant. There has been no communication from the Complainant indicating any difficulties with attending the hearing or requesting a postponement. As of the date of this decision there has been no communication forthcoming from the Complainant as to the reasons for her non-attendance.
The contact details used were those provided by the Complainant to the WRC and there was an amount of engagement between the Complainant and the WRC using those contact details.
I am satisfied that the Complainant was properly notified of the arrangements for the adjudication hearing. |
CA-00055850-001 - section 27 of the Organisation of Working Time Act, 1997
Summary of Complainant’s Case:
In the WRC complaint referral form, the Complainant submitted that she accrued annual leave between January 2015 and September 2022. She stated that, after she resigned on 30 September 2022, she received no response regarding her annual leave. The Complainant stated that she queried the matter with the Respondent and was informed that her last medical certificate was issued on 15 April 2019 and no annual leave had been accrued. The Complainant stated that she reviewed her medical certificates and they covered the period of her absence up until 8 February 2021. The Complainant further stated that, as a result of her long-term sick leave she was unable to take any annual leave. The Complainant’s understanding was that any unused annual leave would be carried over to the next year. The Complainant, in the WRC form alleged that she was owed €12 x 40h x 4weeks for each year from 2015 to 2021 i.e. €1920 per year and €960 for 2022. There was no attendance by, or on behalf of, the Complainant at the adjudication hearing on 21 March 2024 to adduce any evidence in support of her claims. |
Summary of Respondent’s Case:
Mr Gaffney, on behalf of the Respondent, submits as follows. An employer is not required to permit an employee to take annual leave while the employee is on sick leave. The right to accrue annual leave while on sick leave is limited to certified sick leave. Uncertified sick leave does not count towards annual leave. As per the Act: “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.” Annual leave does not accrue indefinitely during periods of sick leave. There is a 15-month carry-over period. The Respondent relies on section 20(1)(c) of the Act. The “leave year” is defined by section 2 of the Organisation of Working Time Act 1997 as running from 1 April to 31 March. The Complainant resigned from her employment on the 30 October 2022. Therefore, the relevant years in relation to the calculation of annual leave owing are as follows:- 1 April 2022 – 30 October 2022 1 April 2021 – 31 March 2022 1 April 2020 – 31 March 2021 The last medical certificate furnished by the Claimant covered a period up to the 15 April 2019. Therefore, no certified sick leave took place within the relevant years. Following the Complainant’s WRC referral, the Respondent wrote to the WRC on 31 July 2023 regarding the Complainant’s assertion that she reviewed her records and “the last medical certificatesent, I noticed that it covered everything from the latest medical certificate up until 08/02/2021” As the Respondent’s records showed that the last certificate issued on 15 April 2019, the Respondent asked that the Complainant provide a copy of such medical certificate which apparently covers the period 15 April 2019 to the 8 February 2021. |
Findings and Conclusions:
From the complaint form provided, I have discerned that the Complainant seeks a payment with respect to annual leave she accrued between January 2015 and September 2022. There was no attendance by, or on behalf of, the Complainant to adduce any evidence in support of her claims. |
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.
Based on the uncontested submission on behalf of the Respondent, I declare this complaint to be not well founded. |
CA-00055850-004 - section 27 of the Organisation of Working Time Act, 1997
Summary of Complainant’s Case:
The Complainant, in the WRC referral form submitted that she was not paid for public holidays between 2015 and 2022. She stated that she was owed €864 for each year from 2015 to 2021, and €672 for 2022. |
Summary of Respondent’s Case:
It was submitted, on behalf of the Respondent, that time spent on sick leave will not count as time spent working for the purposes of the accrual of public holiday entitlements. Apart from the following · any absence due to a strike; · any period up to 13 weeks for authorised absence that was not illness-related; · any period up to 26 weeks for absence arising from illness or injury which was not workplace related; and · any period up to 52 weeks for workplace-related injury. None of the above apply in this scenario. |
Findings and Conclusions:
From the complaint form provided, I have discerned that the Complainant seeks a payment with respect to public holidays that fell between January 2015 and September 2022. There was no attendance by, or on behalf of, the Complainant to adduce any evidence in support of her claims. |
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.
Based on the uncontested submission on behalf of the Respondent, I declare this complaint to be not well founded. |
CA-00055850-005 - Section 8 of the Unfair Dismissals Act, 1977
Summary of Respondent’s Case:
It is submitted on behalf of the Respondent that the Complainant tendered her resignation in written correspondence dated 30 September 2022 and therefore cannot maintain a claim for unfair dismissal. As the Complainant clearly states that she resigned from her employment on 30 September 2022, it is submitted that it is unsustainable to state that the Complainant was allegedly unfairly dismissed on 4 November 2022 when she received correspondence from the Respondent advising her that she was not entitled to any accrued annual leave or public holiday entitlements. Any such claim is spurious and vexatious and the burden of proof rests with the Complainant in such regard as the Respondent did not dismiss the Complainant and the Complainant also states that to be the case in her complaint form. |
Summary of Complainant’s Case:
The Complainant, in her WRC referral form submits that she might have been unfairly dismissed on 4 November 2022 prior to her handing in her resignation on 30 September 2022 giving six weeks’ notice. |
Findings and Conclusions:
From the complaint form provided, I have discerned that the Complainant alleges that she might have been unfairly dismissed prior to handing in her notice on 30 September 2022. There was no attendance by, or on behalf of, the Complainant to adduce any evidence in support of her claims. |
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Based on the uncontested submission on behalf of the Respondent, I find that the Complainant was not unfairly dismissed from her employment. |
Dated: 17th of May 2024
Workplace Relations Commission Adjudication Officer: Ewa Sobanska
Key Words:
Annual leave- public holidays – unfair dismissal- |