ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00009160
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Complaint:
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-00012039-001 | 21/06/2017 |
Date of Adjudication Hearing: 11/12/2017
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant was employed as a Chef from 24th October 2015 to 9th February 2017. He was paid €530.00 per week. He was out sick from 12th March 2016 to 9th February 2017. He has claimed holiday accrual while he was out sick. |
Summary of Complainant’s Case:
The Complainant stated that he had an accident away from work on 12th March 2016. He informed the Head Chef and e-mailed the company accountant on 23rd April. He sent in the first medical certificate in June. He talked to the Head Chef all the time and kept him informed about his injury and absence. He had scans and an MRI for surgery however he never had the surgery. His GP certified him as unfit for work. He was certified fit since February 2017. He was to have a meeting with management on 4th February but that didn’t deal with his absence. He resigned his position on 9th February 2017. He has claimed that legislation now provides for employees on long term sick leave can retain annual leave they could not take for up to 15 months after the end of the year in which it is accrued. He is claiming holiday pay in respect of the period 12th March 2016 to 9th February 2017. |
Summary of Respondent’s Case:
The Respondent stated that the Complainant went missing from work since March 2016. They denied that he contacted the Head Chef. They made numerous attempts to contact him but he never replied to them. They replied to his e-mail 27th July seeking medical certificates. They received certificates on 19th September backdated to March. The Respondent requested monthly certificates but the Complainant failed to do so. The Complainant again produced a certificate in November and in January 2017 backdated. He was to attend a meeting in January but did not attend. The Respondent then requested weekly certificates but he failed to do so. The Respondent wanted to initiate disciplinary action against him but they couldn’t as he was out sick. He was working elsewhere, running a recruitment consultancy, details supplied. The Gardaí came looking for him regarding extradition charges. He was advised that if he didn’t supply certificates he would be treated as unauthorised absence. They requested him to attend the Company doctor but he refused. The Respondent then initiated a disciplinary investigation but he refused to take part. Eventually he resigned on 9th February 2017. He received all holiday pay entitlement up to 5th April 2016. He did not comply with company requirements regarding being out sick. This claim is rejected. |
Findings and Conclusions:
I note that the Complainant had an accident outside of work on 12th March 2016. I note the conflict of evidence regarding contacting the Head Chef. I note that the Complainant e-mailed the company accountant on 23rd April 2016 advising him of his accident and asking if any certificate was needed. I note the accountant’s response “if you have something fine, if not that’s OK”. I was aware of your incident” Therefore, I find that the Respondent had been informed of the accident outside of work. I note the conflict between the accountant’s approach to medical certificates and the general manager’s. I note from e-mails presented at the hearing the Complainant advised the accountant on 27th July, not the general manager, that his GP had closed off the file and he was fit for work. However, he advised that he would not be able to stand for long hours and sought another suitable position in the company. I note that the Respondent replied pointing out that he had gone absent from work, they had tried to contact him but he never responded. They sought medical certificates backdated to March. Also they were unable to provide alternative work while he “recovers”. They also sought a certification from his doctor confirming his full fitness to return to work. I note that there was an exchange of emails following this, each accusing the other of contacting/not contacting each other etc. Ultimately the Complainant was unfit to return to normal duties. I find that there was little contact for the remaining of the employment. I find that certificates were not provided on a regular basis as requested. I note the alleged altercation outside of the workplace that resulted in a report to the Gardaí. I note that the Complainant resigned his position on 9th February 2017. Legislation now provides that an employee out on long term sickness can accrue holiday entitlement for a period of 15 months. However natural justice and fairness would suggest that the normal courtesies of informing your employer of the nature of the illness and expected duration and also presenting medical certificates as required by company policy should apply. In this case I find that the Complainant failed to notify his employer /general manager of the accident and it was not until 23rd April that he formally contacted the accountant not the general manager. I note that the accountant was very vague regarding the absence protocol. However, he knew about the accident. Therefore, the Complainant must have told somebody in the business. I note that the Complainant failed to provide medical certificates until September despite being asked to do so at the latest in July. I note the Respondent’s allegations that they had tried on many occasions to contact him after his initial absence but they got no response. I note that the Respondent alleged that he refused to attend a company doctor. I note the evidence that the Complainant was running a recruitment consultancy while out sick. I note that he eventually resigned his position on 9th February 2017. I find that the Complainant failed to properly contact his employer following the accident and to keep his employer regularly informed of the progress of recovery and expected date of return. I find that the Complainant failed to provide medical certificates initially and then as requested by the Respondent. I find that the Complainant failed to provide any basic information/communication that any employee would be expected to do. I find that in doing so the Complainant cannot expect to have the benefits of the law applying to his situation and at the same time failing consistently to comply with basic communications and information requirements. Under the circumstances, I find that this complaint cannot succeed. |
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.
For the above stated reasons, I have decided that this complaint should fail.
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Dated: 12th April 2018
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Key Words:
Holiday accrual while out sick |