Complainant

Respondent

Parties

Ion  Plohod

Anglo Beef Processors Ireland ABP

Complainant

Respondent

Anonymised Parties

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Representatives

  Self-represented

Siobhan McGowan,  Alastair Purdy & Co. Solicitors

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-00060252-001

26/11/2023

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and a witness gave their evidence under oath.  A witness for the respondent, the site HR manager, gave evidence under oath.  Cross examination of the witnesses was undertaken.  The hearing was facilitated by an interpreted provided by the WRC.

Unfortunately, the production of this decision was delayed due to the impacts of Covid 19

The complainant submitted that he worked for the respondent for more than three years. He went out on long term sick leave for a number of years. He had several meetings with his employer, and they suggested to him that he leave on grounds of ill health. He was informed that he had accrued 46.67 days leave and on 26 September 2023 he agreed with those terms and signed a contract to leave employment on that basis.

The complainant stated that the employer did not act correctly.  Their efforts to bring the matter to a conclusion was rushed and they made mistakes.  The complainant submitted that he was given incorrect information and was only paid for 35 days and was left short 11.67 days. He then sought to cancel the agreement, but he received no response from the employer.  He gave evidence in support of his contentions

The respondent noted that the complainant was out on sick leave for more than 3 1/2 years. An agreement was reached to terminate his employment, during which it was erroneously confirmed to him that 46.67 days were due to him.  However, it transpired subsequently that this number was incorrect.

The respondent accepted that an error had been made, and the complainant was given inaccurate information. However, he was made aware of the correct figures and those figures are in line with the legislation. The respondent submitted that it has fully discharged its obligations and furthermore has discharged over and above the complainant’s legislative entitlement.

The respondent submitted that the Organisation of Working Time Act, 1997 (as amended) deals with annual leave entitlements. The respondent submitted that the complainant, commenced his period of sick leave on 3 October 2019. The respondents leave year runs from January to December. On foot of the applicable section of the Act any annual leave accrued by the complainant during a leave year will expire “15 months after the end of that leave year”.

The respondent contended the following:

·       Annual leave for the year 2019 expired on 31 March 2021.

·       Annual leave for the year 2020 expired on 31 March 2022

·       Annual leave for the year 2021 expired on 31 March 2023

The respondent submitted that in these circumstances the complainant was owed, and was paid, his annual leave entitlement for the year 2022 in full and for the year 2023, up to the date of his resignation - 26 September 2023.

The respondent noted however that the Act, sets the “leave year” as running from 1 April to 31 March. Using that period, the complainant’s entitlements are as follows:

Leave year of 2019 expired on 30 June 2021

Leave year of 2020 expired on 30 June 2022

Leave year of 2021 expired on 30 June 2023

In that case the complainant would be entitled to annual leave for 1 April 2022 to 31 March 2023 of 20 days and from 1 April 2023 to termination on 26 September 2023 (just under 10 days). The complainant was paid was in excess of this as he was paid for 35 days.

Section 20 of the Organisation of Working Time Act states that:

20.—(1) The times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements and subject—

(a) to 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 1 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—

(i) within the leave year to which it relates,

(ii) with the consent of the employee, within the period of 6 months after the end of that leave year, or

(iii) where the employee—

(I) is, due to illness, unable to take all or any part of his or her annual leave during that leave year or the period specified in subparagraph (ii), and

(II) has provided a certificate of a registered medical practitioner in respect of that illness to his or her employer,

within the period of 15 months after the end of that leave year.

The respondent submitted that the complainant was paid his entitlements in accordance with the requirements of the legislation.  It acknowledges that he was provided with erroneous information in advance of signing the agreement but reiterated that this was an error and that he was paid his legislative entitlements.

Having regard to this complaint taken under the Organisation of Working Time Act, 1997 the complainant has not established that he was entitled to any payment in respect of annual leave accrued before 2022.  I am satisfied that the provisions of the legislation have been adhered to.

Having regard to all the written and oral evidence submitted in relation to this complaint, I find that the complaint is therefore not well founded in accordance with the legislation.

Having regard to all the written and oral evidence submitted in relation to this complaint, my decision is that the complaint is not well founded.

Organisation of Working Time Act – Annual Leave payable under the Act – complaint not well founded