Complainant

Respondent

Parties

Megan  Kenny

Simon Community (Midlands) CLG  

Complainant

Respondent

Anonymised Parties

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Representatives

  In person

Bill Canning Sentric Solutions

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-00060917-001

09/01/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00060917-003

09/01/2024

The Complainant issued two complaints against the Respondent which is her former employer. Both complaints are brought under the Organisation of Working Time Act 1997 (OWTA.) They are in respect of (001) an allowance at the termination of her employment for Annual Leave which was not paid to the Complainant during her employment and (003) because the Complainant was required to work in excess of a 48 hours working week.

Under affirmation the Complainant gave the following evidence:

The Respondent provides support services and accommodation to people who are homeless, vulnerable and many of whom have drug and/or alcohol addictions.

The Complainant commenced work for the Respondent on 16.6.2016 as a case officer.

In October 2020 she was promoted to Regional Case Worker and Assistant Manager.

At this time, she increased her weekly working hours from 39 to 48 hours per week. She also took on additional work, arising from an agreement with another social care organisation. This partnership brought new duties to the Respondent’s remit – namely the provision of housing. This double jobbing ultimately became too much and overwhelmed the Complainant.

Her line manager was EK who attended the Adjudication Hearing as a witness on the Complainant’s behalf.

Whilst the Complainant’s work was challenging it was rewarding but there was a culture of overwork and underpayment which was ultimately overwhelming. She went on sick leave on 17 July 2023. Her employment ended on 24 November 2023. At the time of her departure a number of payment issues that she had raised with Respondent were left unaddressed and unresolved.

CA-00060917-001

This complaint is in respect of an Annual Leave Allowance on the termination of the Complainant’s employment.

The Complainant sought an allowance to reflect the annual leave that was not paid to her in 2019 (6 days) 2020 (12 days) and 2021 (7 days).

She seeks an allowance of €2943.12 if the rate is based on the pay that she should have been paid when the annual leave was due or €4967.30 if it based on the normal weekly rate of pay that applied at the time her employment terminated in 2023.

She stated that her line manager, EK told her that she was allowed her to carry over the untaken annual leave because there was a shortage of staff.

In 2019, 2020 and 2021 staff shortages occurred partly because Covid and partly because of the challenging nature of the work.

She states that she was not provided with an employment handbook in 2016 (when she started the job or later) which limits the right to carry over annual leave.

She accepts that her contract of employment states that Annual Leave “cannot be carried over to a new year except in exceptional circumstances” The Complainant says that her line manager told her that she was allowed to carry over her leave because of critical incidents that occurred and to cover staff shortages. She says that these circumstances were exceptional. She states that no one in management advised her - and her contract does not make it clear - that annual leave will be lost if not taken within the leave year. All it states is that it cannot be carried over unless there are exceptional circumstances. She relies on the CJEU case of Kreuziger together with three WRC adjudication decisions which follow the CJEU authorities to uphold the fundamental right to annual leave. She submits that not only did her employer not encourage to take annual leave, on the contrary, her line manager asked her not to take annual leave and to carry it over, because the needs of clients and the service were so acute.

She does not accept that she received the company handbook but accepts that the clause in the contract with respect to Annual Leave is similar to that in the handbook, but because she was given permission by her line manager to carry over her annual leave and because the staff shortage situation was so acute. Covid was a challenging time for the clients and providing services to them became more onerous and time consuming.  She was never encouraged to avail of her full annual leave during the leave year and she was never told she might lose her entitlement if she didn’t take the leave during the leave year.

CA-00060917-003

The Complainant states that she was regularly required to work more than 48 hours per week. She gave evidence that in the 17-week period - before she went on sick leave on 17 July 2023 - her work hours averaged at 50.9 hours per week.

She claims that the evidence to support this complaint is irrefutable because her pay slips show that within this 17-week period, in ten of these weeks, she was paid for between 3 and 8 work hours in addition to her normal 48 work hours. In these weeks her work hours varied from between 51 hours to 56 hours.  It was this level of extreme overwork and challenging duties that caused her to become unwell and to go on sick leave. This was a very difficult and stressful time for the Complainant. She made every effort to resolve this directly with the Respondent but their response was defensive and they claimed, as indeed they do in this Adjudication hearing, that she chose or “volunteered” to do the additional work hours which she was not required to do.

The Complainant was cross examined and accepted that she felt that she could not leave the service without staff but also that her line manager asked her to stay after her 48 hours had finished.

EK the Regional Support Service Manager of the Respondent gave the following evidence under affirmation.

EKwas the Complainants direct line manager.

CA-00060917-001

There was a custom and practice to allow untaken annual leave to be carried forward. The reason that the Complainant was unable take her full annual leave was because of staff shortages, Covid related absences and the extremely vulnerable clients that both the Complainant and she were responsible for. Critical incidents within the service were regular. Clients had significant mental health and addiction issues. Several drug overdoses occurred around this time, some being fatal. The whole situation constituted exceptional circumstances. The safety of clients was always the Complainant’s priority. The Complainant’s annual leave became secondary to the need to not leave vulnerable clients without support services. It was never envisaged that annual leave that had built up would not be carried over or would later be denied to an employee. The concept that the Respondent management encouraged the taking of annual leave is wholly rejected. It suited management that leave was not taken because there was no one else to provide the services and they couldn’t leave the clients without a service. No one in management ever advised staff that the untaken leave would not be honoured or leave in lieu be given as soon as the long promised funding was obtained and additional staff were recruited. 2020-2023 was a pinch point for the service, the number of clients increased, the accommodation units increased in number, staff shortages increased and Covid impacted the mental and physical health of the clients. 

CA-00060917-003

Working in excess of 48 hours per week became a norm.  This was because of the level of critical incidents rose when the housing responsibilities were added on top of what was already a busy job. The workload was excessive. There were 150 plus clients in the housing and support services.

EK states that the Complainant asked her for additional remuneration to cover the excessive work hours that she was required to do. EK entirely understood this. The Complainant was completely over worked. She could see that.  It was the circumstances that existed that required the Complainant to work more than 48 hours per week. It was also because EK needed her to not leave her if a critical incident arose. There was no one else to cover these situations. 

Under cross examination EK said that while she knew that both she and the Complainant were overworked and under supported by management, she did not know specifically that the Complainant had exceeded the maximum of 48 work hours per week. EK said that she was not a HR advisor, but the Respondent HR certainly knew that the Complainant was breaching the 48 hour limit on a regular basis because they were paying her to do so, and they did nothing to stop it happening, even when they knew that the Complainant had requested more pay and then became sick. Seven clients died from overdose during the Complainant’s time working with the Respondent.  It was a very stressful job, and they were not adequately supported. The decision to take on the management of housing provision to clients was not properly managed. There was not enough staff recruited. And yet when the Complainant left work, the additional work that she did on the housing provision side was recruited for.

When it was put to her in cross examination that the funding was not obtained and that the only reason that there were funds available was because the Complainant left her post in October 2023 so her salary was available to recruit, EK said that she did not know when funding was provided but believed that some funding was obtained because she was told by management that it was.

In any event the Complainant worked in excess of 48 hours per week and the Respondent paid her for doing so.

No evidence was called on behalf of the Respondent. The Respondent representative made the following submissions based on the Complainant’s evidence and admitted documentation.

The Respondent representative submitted that the incorrect name of the Respondent had been cited on the complaint form and that the WRC had no jurisdiction because it did not consent to an amendment of the name from Simon Community Midlands Ltd to Simon Community Midlands CLG.

In terms of the substantive complaints the Respondent submits as follows:

CA-00060917-001

The contract of employment is clear. It states that leave may not be carried over subject to an exceptional circumstances exception. The employment handbook also states this however without calling evidence the Respondent is unable to counter the Complainant’s evidence that she was not provided with a copy of the handbook when she commenced in 2016. The Respondent also is unable to contend that the Respondent actively encouraged the Complainant to take annual leave and or advised her that if she did not take it within the leave year that it would be lost. The Respondent representative asserts that if EK gave her permission to carry over the leave, this was not reported to high management and was not sanctioned.

The Respondent representative contends that the “use it or lose it” nature of her annual leave is implied by the contractual term that states that the leave must be taken within the leave year.

The Respondent submits that because the Complainant initially sought that contractual annual leave be paid by the Respondent, as opposed to statutory leave, this is why the issue was not resolved before she issued a WRC complaint.

CA-00060917-003

The Respondent accepts that the Complainant that (within the reckonable period under the OWTA) that in 10 of the 17 weeks that predated her sick leave that she worked in excess of 48 hours. The Respondent also accepts the loss figures provided by the Complainant. However it is submitted that she was not asked to do these extra hours but rather she volunteered to do these extra hours and was not asked to work.

Insofar as EK ‘s evidence he asserts that the reliability of her evidence needs to be assessed in light of the facts that she too left the employment around the same time, following which she also issued WRC complaints and her Adjudication hearing is pending.

Change of Respondent Name

I amend the Respondent’s name to reflect the fact that the correct name of the Respondent is Simon Community Midlands CLG and not Simon Community Midlands Ltd. I amend the name of Respondent under the discretion provided to me by section 39 (2) of the OWTA.

Compensatory Remedy under Section 27 (3) of the OWTA

It is worth stating at the outset of this decision that the compensatory remedy that is available under section 27 (3) of the OWTA 1997 is not limited to the loss that was suffered by the employee but rather is “such an amount as is just an equitable having regard to all of the circumstances but not exceeding 2 years remuneration in respect of the employee’s employment.”  Section 27 (3) is the relief section for both the Complainant’s annual leave (sections 19 and 20) complaint and the 48-hour working week (section 15) complaint.

The right to annual leave and how that leave is calculated is governed by section sections 19 and 20 of the OWTA but if it is found that there has been a breach of the right to annual leave or a breach under section 15, the remedy that may be awarded is governed by section 27(3.)

I will now turn to each complaint in turn.

CA-00060917-001

This is a complaint for unpaid annual leave in 2019, 2020 and 2021.  

Where the employment is terminated, a number of CJEU decisions and WRC decisions have determined that if an employee did not take annual leave, and was not been encouraged to take leave and was not  expressly advised that the failure to avail of leave within a period of time will mean that the leave entitlement will be foregone, the right to a payment in lieu of leave is not lost if the employment is terminated.

Max-Planck-Gestelleschaft zur Forderung der Wissenschaften cV v. Shimzu C-684/16.

In this case the CJEU held that Article 7 of the Working Time Directive (2003/88/EC) requires that a national court hearing a complaint “must ensure that should the employer not be able to show that it has exercised all due diligence in enabling the worker actually to take the paid annual leave or correspondingly and in the event of the termination of the employment relationship, to the allowance in lieu of leave not taken, which must be paid, in that case, directly by the employer concerned.”

In King v. Sash Windows Workshop Ltd C-214/16 the CJEU held that any national provision which prevents an employee from being paid at the end of their employment for leave carried over several consecutive reference periods was precluded where the leave was not granted to the employee as it accrued (in King this arose in circumstances where the complainant was wrongly treated as a self-employed worker as opposed to as an employee, which he was)

Again in BU v. Comune di Copertino C-218/22 by way of a preliminary ruling the CJEU (First Chamber) confirmed that there can be no national legislation (including a time limit provision) which prohibits the payment of untaken annual leave at the end of an employee’s employment unless the employee had a real opportunity to take the leave and that he was encouraged by his Employer to do so and was advised that a failure to do so would result in it being lost.

Therefore, the CJEU authorities make it clear that the onus is on the Employer to prove that the employee is permitted to avail of leave and the employer must exercise due diligence to ensure that the leave is taken so that if an Employer is relying on “use it or lose it” defence, there must be clear evidence of this.

As the Adjudicator in the WRC decision of Adj 19188 [A Facilities Coordinator v. A Bakery] noted with respect to the CJEU jurisprudence on this issue:

“The thread of the CJEU jurisprudence is that in cases other than long sickness absence, the onus is on the employer to ensure that the employee can actually avail of annual leave. The employer must exercise all due diligence in ensuring that leave is taken. The jurisprudence centres on the employee being the weaker party in the employment relationship. The right to annual leave draws from both the (Working Time) Directive and the Charter of Fundamental Rights. It is a fundamental social right. Where the employer has not met the burden of due diligence, EU precludes a national provision that seeks to limit the accrual of annual leave or the payment of the allowance in lieu. Where carried over annual leave is to lapse, this situation must be accurately conveyed to the employee and in a timely fashion. Sash Windows addressed leave going back 13 years and the CJEU did not limit the purview of the claim despite being invited to do so.”

This decision has been followed in the more recent WRC decisions of Adj 40093 Adj 51058 and Adj 50541.

The legal point in this complaint may be summed up as follows: Where an employment ends and annual leave has not been taken, unless there is evidence to show that the Employer exercised due diligence to ensure that the Employee was encouraged to take annual leave and evidence to show that the Employee was clearly advised that he would lose the leave unless he took it within a time period,  then the fundamental social right to annual leave is not lost and the employee is entitled to an allowance for not being allowed to take the leave.

I am satisfied on the basis of the uncontested evidence of the Complainant, as corroborated by witness EK that the Complainant did not receive her annual leave entitlement in the years 2019, 2020 and 2021. I am satisfied too that in accordance with her contract she was given permission by her line manager, EK that she could carry over her annual leave entitlements for those years because of the understaffed conditions that they were working within and because of the vulnerability of the clients and the regularity of critical incidents that were occurring at that time. I am satisfied that the contract permitted the carry over of leave in exceptional circumstances and I accept the Complainant’s undisputed evidence that exceptional circumstances prevailed at that time and that she was given permission to carry it over.

There is no evidence that management encouraged the Complainant to take her annual leave or made it clear to her that by carrying it over, as she had permission to do,  would result in it being lost.

I am satisfied that this complaint is well founded, and I award the Complainant, €5000.00to reflect the losses that she incurred as a result of unpaid annual leave and an additional award to disincentivise further breaches of the fundamental right to annual leave from occurring to other employees of the Respondent in the future.

CA-00060917-003

Based on the uncontested evidence of the Complainant (which was corroborated by EK) together with the pay slip evidence, and the Respondent acceptance that the Complainant was paid to work between 50 and 56 hours per week within the reckonable period, I am satisfied that the Respondent acted in breach of section 15 of the OWTA. The defence that the Complainant was working on a voluntary basis for these periods is unsustainable. I award the Complainant, €5000.00 to reflect the seriousness of the breach. This award includes an amount to disincentivise further breaches of the fundamental right to weekly rest from occurring in the future.

CA-00060917-001

This complaint is well founded. I award the Complainant €5000.000

CA-00060917-003

This complaint is well founded. I award the Complainant €5000.000

OWTA – weekly rest 48 hours – annual leave