Complainant

Respondent

Parties

Kieran  Mc Cann

Aer Lingus Ireland Ltd

Representatives

  N/A

N/A

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-00063929-001

06/06/2024

The Complainant has been employed as a cargo agent with the Respondent since March 2022. His complaint concerns the approach to the carry-over of annual leave and lieu time and specifically a buy-out of certain leave balances (and lieu time) that took place in December 2023. The Complainant has taken issue with the way in which the annual leave buy-out took place.

The Complainant stated that on his payslip dated 14 December 2023, he noticed that 18.75 annual leave hours as well as 75.75 lieu hours were bought back from him thereby leaving him with negative annual leave for rest of the leave year. This was done with without his permission or any consultation and despite him having agreed with the Rostering Manager that he would take all carried over leave within a month of 31 March 2023.

He stated that the only solution offered to him by the Respondent was that he takes unpaid leave which was unacceptable to him.

As part of the Complainant’s contractual leave arrangements, he accrues annual leave and also accrues “lieu time” for any public & bank holidays. His annual leave entitlement is 20 days or 150 hours. The annual leave year is 1 April – 31 March. Employees are permitted to carry a maximum of five days of annual leave (once they have taken their minimum statutory entitlements) unless alternative arrangements are agreed in local areas. The level of lieu time is based on whether the employee works or is resting on the day the public holiday falls and also the employee’s underlying contractual entitlement i.e. there are differing lieu entitlements for employees who commenced pre and post 2009.

In the case of the Complainant, he earns lieu time based on the number of hours worked on the day. He also receives ⅕ of his contractual week for a public holiday he is resting on i.e. 7.5 hours for a day he is resting. As it can be challenging for operational areas to allocate the total combined accrued balances of annual leave and lieu time during busy operational periods, it has been the practice in the Respondent to purchase / buy-out of any annual leave/lieu combined balances in excess of 5 days which are carried over from one leave year to another. Any purchase/buy-out only pertains to annual leave hours/days in excess of statutory entitlements which must be allocated. In recent years this purchase/buyout has taken place in May/June following the preceding leave year which ends in March.

In 2023, the anticipated purchase/buyout did not take place in May/June. Instead, it was announced on 6 December 2023 that the buy-out would take place in respect of any combined annual leave / free in lieu hours carried forward in excess of 5 days after the 22/23 leave year and that colleagues would see these payments in their 14 December 2023 payslip.

In the Complainant’s individual case, a total of 94.6 hours was bought out (18.8 hours annual leave and 75.8 Free in Lieu hours). He received payments of €270.94 and €1094.59 in his payslip of 14 December 2023 reflecting this buyout. For annual leave on 31 March 2023, the Complainant carried forward 56.3 hours from the 22/23 leave year (made up of 5 annual leave days (37.5 hours) and an additional 18.8 hours. This gave him a total leave entitlement of 206.3 hours [150 hours plus carry over of 56.3 hours]. It is accepted that the Complainant wished to retain his additional leave as he had plans to take extended annual leave in 2023 for his wedding. The Respondent accepted this may have been planned locally with his management, but it was not communicated to the relevant HR team tasked with implementing the annual leave buy-out.

The Complainant had the excess 18.8 hours of annual leave bought out in his December 2023 payslip to the value of €270.94. 3.13. It is important to emphasise that the Complainant availed of considerable paid annual leave days during the relevant period – by way of example he took 18 work days of paid annual leave in April /May 2023. He took a further 9 work days of paid annual leave in September / October 2023. Therefore, at the time of the annual leave buy out, he had already taken 27 work days of annual leave (equating to 202.5 hours). He received all of his statutory entitlements in full.

At the time of the buyout, the Complainant had already availed of annual leave/ lieu time that resulted in a negative balance being generated (-15 hours annual leave and -7.5 hours lieu). This was leave approved locally without the knowledge that their approval of his leave would result in the Complainant having a negative balance of leave hours.

The Law

Article 7 of the Working Time Directive (2003/88/EC) sets out the entitlement to paid annual leave as follows:

“Annual Leave 1.  Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice.  2. The minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is ended.”    

This provision is transposed into Irish lay by virtue of the enactment of Sections 19, 20 and 23 of the Organisation of Working Time Act.

Section 19 of the Organisation of Working Time Act 1997 outlines that an employee’s annual leave entitlement is based on the amount of time that they have worked during the year as is calculated in three ways:

(a)   4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment).

(b)   One-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c)    8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Section 20 (1) deals with the times at which annual leave is granted to an employee and this is determined by the employer subject to a number of provisions:

(a)   The employer taking into account-

(i)               The need for the employee to reconcile work and any family responsibilities,

(ii)              The opportunities for rest and recreation available to the employee.

(b)   To the employer having consulted the employee or the trade union (if any) of which he or she is a member, not later than one month before the day on which the annual leave or, as the case may be, the portion thereof concerned is due to commence, and

(c)    To the leave being granted within the leave year to which it relates or, with the consent of the employee, within 6 months thereafter.

(2) The pay in respect of an employee’s annual leave shall –

(a) be paid to the employee in advance of his or her taking the leave,

(b) be at the normal weekly rate or, as the case may be, at a rate which is proportionate to the normal weekly rate, and ….”

Section 21 of the Acts states as follows in relation to public holidays:

21.—(1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—

(a) a paid day off on that day,

(b) a paid day off within a month of that day,

(c) an additional day of annual leave,

(d) an additional day's pay:

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.

(2) An employee may, not later than 21 days before the public holiday concerned, request his or her employer to make, as respects the employee, a determination under subsection (1) in relation to a particular public holiday and notify the employee of that determination at least 14 days before that holiday.

(3) If an employer fails to comply with a request under subsection (2), he or she shall be deemed to have determined that the entitlement of the employee concerned under subsection (1) shall be to a paid day off on the public holiday concerned or, in a case to which the proviso to subsection (1) applies, to an additional day's pay.

(4) Subsection (1) shall not apply, as respects a particular public holiday, to an employee (not being an employee who is a whole-time employee) unless he or she has worked for the employer concerned at least 40 hours during the period of 5 weeks ending on the day before that public holiday.

(5) Subsection (1) shall not apply, as respects a particular public holiday, to an employee who is, other than on the commencement of this section, absent from work immediately before that public holiday in any of the cases specified in the Third Schedule .

(6) For the avoidance of doubt, the reference in the proviso to subsection (1) to a day on which the employee is entitled to a paid day off includes a reference to any day on which he or she is not required to work, the pay to which he or she is entitled in respect of a week or other period being regarded, for this purpose, as receivable by him or her in respect of the day or days in that period on which he or she is not required to work as well as the day or days in that period on which he or she is required to work.

Findings:

As set out in the Act above, an employee is entitled under this legislation to 4 weeks or 20 days annual leave per year. He is also entitled to ten public holidays per year

While I noted that the Complainant is stating that he was prevented from taking annual leave or leave in lieu because hours were deducted from him, I can only concern myself with examining whether the Respondent breached the provisions of this Act.

Given that it was not disputed that the Complainant received his entitlement to 4 weeks or 20 days annual leave as well as ten public holidays in the leave year from 1 April 2023 to 31 March 2024, and that any purchase/buy-out of leave only pertains to annual leave hours/days in excess of his statutory entitlements, I find that the Respondent did not breach the provisions of the Act.

I find that the complaint is not well founded for the reasons set out above.