ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00050446

Parties:

Complaint:

Date of Adjudication Hearing:  16/12/2025

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Procedure:

This complaint under Section 27 of the Organisation of Working Time Act 1997 was referred under Section 41 of the Workplace Relations Act 2015 to the Workplace Relations Commission (hereinafter ‘WRC’) on 27th February 2024.  Following delegation to me by the Director General, I inquired into this complaint and gave the Parties an opportunity to be heard and to present any relevant evidence.  This complaint was heard remotely on a number of occasions and adjourned to clarify preliminary issues arising from the existence of High Court Personal Injury Proceedings and the calculation of the amount accepted to be due and owing by the Respondent, with the final hearing on 16th December 2025.  The Complainant was in attendance and unrepresented.  He was assisted by a Polish interpreter.  The Respondent was represented by Mr Joseph Bolger of ESA Consultants.  The Company Secretary was in attendance on behalf of the Respondent.  Owing to the earlier clarifications, there were no facts in issue requiring sworn evidence.  The hearings were held in public and the Parties were aware that their names would be published.  Both Parties made submissions and the relevant documentation pertaining to the Complainant’s employment and pay was furnished.  All of the evidence, submissions and documentation submitted have been fully considered within this decision.

Background:

The Complainant claimed that upon cessation of his employment, the Respondent had not discharged his pay in lieu of annual leave for a period of sick leave following a workplace accident.  The Respondent accepted that the Complainant was entitled to this payment but had been unable to agree a final figure.

Summary of Complainant’s Case:

The Complainant commenced employment as a Driver for the Respondent on 16th March 2022.  He declined to sign the written contract furnished.  He had worked for 12 weeks before going on sick-leave following a workplace accident on 13th June 2022.  There are ongoing High Court Personal Injuries Proceedings against the Respondent in respect of this accident.  The Complainant remained on sick-leave until the termination of his employment on 29th August 2023.  He contends that he was not paid in lieu of accrued annual leave upon the cessation of his employment contrary to Section 23 of the Organisation of Working Time Act 1997 and seeks payment of same.  No complaint of unfair dismissal was referred to the WRC in respect of the Complainant’s dismissal.  He therefore accepts the aforesaid start/end dates of his employment with the Respondent for the purposes of this complaint.  It is common case that during the 12-week period of his work, his wages averaged €549 gross per week excluding expenses.  It was also agreed that at the time of commencing sick-leave, his wages had increased to €714 gross per week.  The Complainant acknowledged that he had received a week’s pay following his accident.  He also agreed that taking €714 gross per week as his “normal weekly rate” of pay for his sick-leave from 13th June 2022 until 29th August 2023, he was entitled to €3,406.76 gross pay in lieu of accrued annual leave for that period.  Whilst the Worker maintained throughout that he is only seeking the statutory sum due to him, he did not accept the post-taxation figure offered by the Respondent and accordingly, seeks a decision from the WRC.

Summary of Respondent’s Case:

The aforesaid details of the Complainant’s employment with the Respondent were confirmed as being correct with vouching including payslips.  Although the Complainant’s weekly wages had averaged €549 gross per week for his 12-week period of work, the Respondent was prepared to accept his increased salary of €714 gross per week as his “normal weekly rate” of pay.  Following his accident, the Complainant was paid a week’s wages in respect of his accrued annual leave.  Owing to issues relating to the Personal Injury Proceedings, the Respondent did not initially pay the Complainant in lieu of accrued annual leave upon the cessation of his employment.  However, the Respondent accepts that the Complainant was on certified sick leave for the remainder of his employment within the meaning of this Act and solely for the purposes of this complaint.  Taking €714 gross per week as his “normal weekly rate” of pay for his sick-leave from 13th June 2022 until 29th August 2023, he was entitled to €3,406.76 gross pay in lieu of accrued annual leave for that period.  The Respondent had made efforts to discharge this amount less lawful deductions to the Complainant but had not been able to confirm or agree a final figure without access to his tax allowances.  The Respondent’s calculation of the Complainant’s accrued annual leave was furnished along with an undertaking to provide him with a breakdown showing any deductions when making payment of same.

Findings and Conclusions:

It is necessary to apply the agreed factual matrix to the relevant statutory provisions herein.  In relation to an employee’s entitlement to annual leave, Section 19(1) Organisation of Working Time Act 1997 provides:

“19(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to- (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):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.

(1A) For the purposes of this section, a day that an employee was absent from work due to illness shall, if the employee provided to his or her employer a certificate of a registered medical practitioner in respect of that illness, be deemed to be a day on which the employee was-

(a) at his or her place of work or at his or her employer’s disposal, and

(b) carrying on or performing the activities or duties of his or her work.”

Section 20 of the Organisation of Working Time Act 1997 provides that if an employee is unable to take all or any part of his or her annual leave owing to medically certified illness, it can be taken within 15 months of the end of that leave year at an employee’s “normal weekly rate” of pay as defined by Regulations:

“20(1)(c)(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.

(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

(c) in a case in which board or lodging or, as the case may be, both board and lodging constitute part of the employee’s remuneration, include compensation, calculated at the prescribed rate, for any such board or lodging as will not be received by the employee whilst on annual leave.

(3) Nothing in this section shall prevent an employer and employee from entering into arrangements that are more favourable to the employee with regard to the times of, and the pay in respect of, his or her annual leave.

(4) In this section “normal weekly rate” means the normal weekly rate of the employee concerned’s pay determined in accordance with regulations made by the Minister for the purposes of this section.” [S.I. No. 475/1997 – Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997]

In relation to calculating compensation in lieu of accrued annual leave entitlement upon the cessation of employment, Section 23 of the Organisation of Working Time Act 1997 provides for the “relevant period”:

“(1) (a) Where- (i) an employee ceases to be employed, and (ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee, the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave.

(b) In this subsection- "relevant period" means-

(i) in relation to a cessation of employment of an employee to whom subparagraph (i) of paragraph (c) of subsection (1) of section 20 applies, the current leave year,

(ii) in relation to a cessation of employment of an employee to whom subparagraph (ii) of the said paragraph (c) applies, that occurs during the first 6 months of the current leave year-

(I) the current leave year, and

(II) the leave year immediately preceding the current leave year,

(iii) in relation to a cessation of employment of an employee to whom subparagraph (iii) of the said paragraph (c) applies, that occurs during the first 12 months of the period of 15 months referred to in the said subparagraph (iii) -

(I) the current leave year, and

(II) the leave year immediately preceding the current leave year, or

(iv) in relation to a cessation of employment of an employee to whom subparagraph (iii) of the said paragraph (c) applies that occurs during the final 3 months of the period of 15 months referred to in the said subparagraph (iii) -

(I) the current leave year, and

(II) the 2 leave years immediately preceding the current leave year.”

The aforesaid provisions regularly give rise to confusion as to the calculation of the length of time or “relevant period” for which an employee is entitled to pay in lieu of annual leave accrued whilst on sick leave upon the cessation of employment which can span over three years.  In this respect, the excellent decision of Catherine Byrne, Adjudication Officer in ADJ-00030160 provides comprehensive guidance.

In the instant case, there is no issue that applying the aforesaid provisions, the Complainant is entitled to pay in lieu of accrued annual leave for the whole period of his sick-leave and taking his gross weekly wages at its height, this equates to €3,406.76 gross pay.  I have checked the pay information and calculations provided and am satisfied that they are correct.  I am therefore satisfied on the balance of probabilities that upon the cessation of his employment, the Complainant was entitled to €3,406.76 in lieu of annual leave.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in accordance with the requisite redress provisions.  For the aforesaid reasons, I find this complaint to be well-founded.  Section 27(3) of the Organisation of Working Time Act 1997 provides: “A decision of an adjudication officer under Section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely: (a) declare that the complaint was or, as the case may be, was not well founded, (b) require the employer to comply with the relevant provision, (c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.”  I consider it just and equitable in all of the circumstances including the loss of benefit of annual leave, to direct that the Respondent pays the Complainant compensation in the sum of €3,406.76 (subject to any lawful deductions noting that it is a matter for the Complainant to recoup any difference in deductions made and due based upon current tax allowances directly from the Revenue Commissioners).    I am not awarding an additional sum of compensation owing to the cooperative manner in which the Respondent has met this complaint and fact that it opted for the highest possible “normal weekly rate”.

Dated:   09/01/2026

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Key Words:  Calculation of pay in lieu of annual leave accrued whilst on certified sick-leave upon cessation of employment – Sections 19, 20, 23 & 27 of the Organisation of Working Time Act 1997 – ADJ-00030160