Complainant

Respondent

Parties

Adam  Ujda

MCD Landscapes Ltd

Representatives

Paulina Borkowska, a friend

 Self-represented

Acts

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00055183-001

19/02/2023

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

CA-00055183-003

19/02/2023

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

CA-00055183-004

19/02/2023

The complainant was employed as a landscaper with the respondent and commenced employment on 02/09/2020. The complainant worked 40 hours per week and was paid remuneration of €460 gross per week.   The complainant submitted that he was entitled to receive payment for all untaken annual leave and public holidays accrued while he was on long term sick leave from October 2020 to October 2022, up to his resignation on the 29/10/2022. The respondent refutes this allegation and contends that the complainant has no entitlement to receive any payment in this regard.

For the purposes of a termination date, the parties agreed that the 29/10/2022 the date the complainant’s resignation took effect, was the correct date for the purposes of a termination date.  

On the 19/02/2023, the complainant referred a complaint to the Workplace Relations Commission (WRC) pursuant to the Payment of Wages Act 1991, as amended.

Complaint under Section 6 of the Payment of Wages Act 1991 - CA-00055183-001

Ms Borkowska submitted on behalf of the complainant that he was seeking arrears of payment regarding accrued annual leave and public holiday payments under this Act. In view of her application to expand my jurisdiction to have this matter considered for adjudication in accordance with the relevant provisions of the Organisation of Working Time Act 1997, no further complaints were considered under this Act.

No evidence or submissions were put forward by the complainant regarding this complaint.

Complaint under section 27 of the Organisation of Working Time Act, 1997 - CA-00055183-004

Ms Borkowska submitted that the complainant was not paid any monies upon termination of his employment regarding his public holiday entitlements while on sick leave from 24/10/2020 to 29/10/2022 and is entitled to payment for all public holidays which occurred while the complainant was absent on certified sick leave. Ms Borkowska submitted that the complainant requested payment of same in his letter of resignation which was sent by email on the 13/10/2022 and followed up by a further email on 07/11/2022. Despite various requests for payment no monies were received by the complainant in this regard.

In evidence the complainant stated that he was entitled to receive €3,680 in arrears of payments regarding untaken annual leave and public holiday entitlements accrued while he was absent on sick leave from the 24/10/2020 to 29/10/2022. Further to a question from me the complainant was unable to confirm how many public holiday days he was seeking payment for. However, he stated that the total figure owing to him to include all outstanding public holiday payments and accrued annual leave entitlements was €3,680.

Complaint under section 27 of the Organisation of Working Time Act, 1997 - CA-00055183-003

Ms Borkowska submitted that the complainant was not paid any monies allegedly due to him upon his resignation in respect of his annual leave entitlements accrued while he was on sick leave from 24/10/2020 to 29/10/2022. Ms Borkowska submitted that the complainant requested payment of same in his letter of resignation which was sent by email on the 13/10/2022 and followed up by a further email on 07/11/2022. Despite various requests for payment no monies were received by the complainant in this regard.

Ms Borkowska confirmed that the complainant did not receive a final payslip upon his termination of employment on the 29/10/2022.

During the first day of the oral hearing, I paused the hearing to allow the complainant to submit copies of all medical certificates which he claimed he had forwarded to the respondent.  The complainant submitted several medical certificates which were exchanged with the respondent and exhibited at the hearing. 

Ms Borkowska submitted that it was the complainant’s intention to return to work, furthermore that he did not return to Poland with the intention of remaining there. She also stated that the complainant received illness benefit from the Department of Social Protection (the Department) throughout his period of sick leave. 

Summary of the Evidence of the Complainant, Adam Udja

The complainant provided his evidence under oath and with the assistance of Polish interpreters.  The complainant stated that he is owed €3,860 from the respondent in arrears of payments to include all public holiday and annual leave entitlements. He stated that he calculated the figure with the help of an online calculator which he found on an online website.

The complainant confirmed that he commenced his sick leave absence on the 26/10/2020. He further stated that he sent his medical certificates to the illness benefit section of the Department before he would send them to his Manager Mr Paul Cunningham.  The complainant stated that he submitted a medical certificate dated 26/10/2020 for one month which he used for the purposes of illness benefit, by handing this certificate to Mr Cunningham. The complainant stated that he was certified as unfit for work by a psychiatrist in Poland. He forwarded his second medical certificate dated 24/11/2020 to 19/12/2020 via a WhatsApp message to Mr Cunningham.

The complainant asserted that he sent his medical certificates for all periods of his sick leave to Mr Cunningham via WhatsApp message. Further to a question from me regarding whether he had any written evidence to support this assertion, the complainant stated that as the screen on his phone was broken, he could not download any messages.

Further to a question from me regarding the date that he allegedly handed his first medical certificate to Mr Cunningham, the complainant stated he couldn't remember exactly the date however he did recall that he handed the certificate to Mr Cunningham at his place of work in the yard.

The complainant stated that he told Mr Cunningham that his father had got sick and that he would probably need to go to Poland to visit him. He stated that he got his first medical certificate from a doctor in Blanchardstown and that he handed this certificate to Mr Cunningham and told him he was thinking of going to Poland to visit his father. The complainant stated that when he found out his father was ill, he had a nervous breakdown as a result, as he had several traumatic incidents one after the other.

The complainant stated that he sent a photo of the second medical certificate dated 24/11/2020- 19/12/2020, exhibited at the hearing, via WhatsApp message to Mr Cunningham. He did not receive a reply or an acknowledgement. He further stated that he couldn't recall exactly his last day of employment with the respondent prior to leaving for Poland, it could have been around the end of October or the 1st of November 2020.

The complainant stated that he sent a certificate dated 20/12/2020 - 22/01/2021 exhibited at the hearing, to Mr Cunningham and stated he “probably” sent it by WhatsApp message. The complainant stated that he sent certificates dated 23/1/2021 - 26/2/2021 and 27/2/2021 - 28/5/2021, exhibited at the hearing, via WhatsApp messages to Mr Cunningham by sending photos of these certificates.

Further to a question from me regarding whether he thought of contacting the respondent regarding his sick leave absence, the complainant confirmed that he was suffering from depression and, as a result, he had isolated himself from the outside world.

The complainant confirmed that he did not receive any reply from Mr Cunningham to acknowledge his medical certs. However, he stated that he knew from the symbols on the WhatsApp messages when the text was read, and he could see that his texts were read. The next certificate he sent was dated 29/5/2021 - 30/7/2021, exhibited at the hearing. The complainant stated that he “probably” sent the certificates for the following dates, exhibited at the hearing, via WhatsApp message; - 31/7/2021 – 29/9/2021, 30/9/2021 – 7/11/2021, 8/11/2021- 19/12/2021, and 20/12/2021 -30/1/2022.

The complainant confirmed that he sent copy of these certificates to the illness benefit section in the Department, he also took a photo to send to the respondent. He stated that he received illness benefit throughout his period of sick leave. The complainant stated that he “probably” sent 2 certificates exhibited at the hearing dated 31/1/2022 - 6/3/2022 and 7/3/2022- 19/4/2022 by WhatsApp message.

The complainant confirmed that he sent copies of the certificates, exhibited at the hearing, to the respondent for the following dates: 20/4/2022-20/5/2022, 21/5/2022-17/6/2022, 18/6/2022- 15/7/2022, 16/7/2022-16/8/2022, 17/8/2022-9/9/2022, 10/9/2022-7/10/2022, 8/10/2022- 8/10/2022 and 9/10/2022 – 29/10/2022. All certificates, except the certificate dated 18/6/2022- 15/7/2022 were exhibited at the hearing. 

I informed the complainant that the WRC had received all the above certificates apart from one certificate dated 18/6/2022- 15/7/2022 and requested the complainant to forward the requested certificate again. The requested certificate was not received by the WRC.  

The complainant stated that he sent his letter of resignation on the 7/11/2022. He said he sent this letter when he did not receive a reply to his previous email. The complainant stated that he was receiving psychotherapy in Poland. He stated that the Department of Social Protection in Ireland requested him to be examined by a doctor from the equivalent department in Poland. Further to an examination by a Polish doctor, he was informed that he was entitled to continue receiving illness benefit as he was suffering from severe depression. On the 29/10/2022 he was advised by the Department of Social Protection that his entitlement to illness benefit had expired.

The complainant stated that his doctor in Poland advised him around the 29/10/2022 that he was not fit to return to work. He was advised that his recovery was a slow process, and any type of stress or severe stress would impact negatively on him and could trigger his illness. As a result of this advice, he decided to resign from his employment with the respondent. He stated that he was not able to deal with the reality of life as he had been before then. He stated that he was living in Poland now where he had the support of his family.  

Cross-examination

It was put to the complainant by Mr Desmond that the last day he appeared in work was on the 23/10/2020 and that on the 25/10/2020 he sent a WhatsApp message to Mr Cunningham. Therefore, it wasn't possible for him to hand deliver a medical certificate as alleged.

It was put to the complainant that on the 23/10/2020 he informed Mr Cunningham that he would have to return to Poland as his father-in-law was sick. The complainant agreed with this statement. It was put to the complainant that he had stated earlier in his testimony that he referred to his father being ill. The complainant confirmed it was his wife’s father who was like a father to him. 

It was put to the complainant that the first certificate that Mr Desmond received was dated 24/11/2020 – 19/12/2020 as Mr Cunningham had been informed that the complainant was taking unpaid leave. The complainant disagreed with this and stated that he never asked for unpaid leave and confirmed that he had been seen by a doctor in Dublin and received a medical certificate which he handed to Mr Cunningham.

It was put to the complainant that on the 23/10/2020 the complainant had stated that he needed time off to go to Poland and by that point that he had accrued 3 days annual leave. It was put to the complainant that his next payslip dated the 30/10/2020, shows a payment of one public holiday that was owing to him and three days annual leave which he had accrued.

Complaint under Section 6 of the Payment of Wages Act 1991-  CA-00055183-001

No evidence or submissions were submitted by the respondent regarding this complaint.

Complaint under section 27 of the Organisation of Working Time Act, 1997- CA-00055183-004

The respondent refutes this allegation and contends that the complainant has no entitlement to receive any payment regarding public holidays accrued while the complainant was absent on a purported certified sick leave over two years. 

By way of written submission dated 20/3/2023, Mr Martin Desmond submitted that the complainant was paid all wages owing on the last day he attended work on the 23/10/2020. He was paid for a public holiday falling on the 26/10/2020 plus three days for annual leave that were owing to him. He further submitted that the only contact he received from the complainant after this date was through email and WhatsApp messages.

Mr Desmond, on behalf of the respondent, submitted at the hearing that the complainant was not entitled to any further payment and contended that the complainant has no entitlement to receive any payment for alleged accrued public holiday entitlements while on sick leave from 24/10/2020 to 29/10/2022.

Complaint under section 27 of the Organisation of Working Time Act, 1997 - CA-00055183-003

Mr Desmond, on behalf of the respondent, submitted at the hearing that the complainant was not entitled to any further payment. He asserted that the complainant has no entitlement to receive any payment for alleged accrued annual leave entitlements while on sick leave from 24/10/2020 to 29/10/2022.

By way of written submission dated 20/3/2023 Mr Desmond submitted that the complainant was paid all wages owing on the last day he attended work on the 23/10/2020 and was paid for three days of annual leave that he had accrued at that point. Mr Desmond exhibited at the oral hearing two payslips dated 23/10/2020 and 30/10/2020 which were exchanged with the complainant’s representative. The payslip dated 30/10/2020 shows payment for three days of annual leave to the complainant.

By way of written submission dated 10/08/2023 Mr Martin Desmond submitted that the complainant’s last day of attending at his place of employment was the 23/10/2020. Since that date, it is submitted that the complainant did not make any personal contact either in person or by way of a phone call with the respondent. All correspondence with the complainant has been via WhatsApp messages, emails and a third-party phone call from the complainant’s representative.

It is further submitted that the respondent did not receive various medical certificates allegedly sent by the complainant. Mr Desmond provided dates when Mr Cunningham received medical certificates in Polish during 2021 and 2022 from the complainant via WhatsApp messages. On the 7/11/2022 Mr Desmond received an e-mail from the complainant requesting all outstanding annual leave payments owing to him.

Mr Desmond exhibited at the hearing an employment contract dated 2/9/2020 signed by the complainant, and an extract from their employee handbook setting out the grievance procedure. In addition, during the second day of the oral hearing I requested Mr Desmond, on behalf of the respondent, to forward copies of three payslips which received by the WRC and were exchanged with the complainant. Mr Desmond exhibited payslips dated 16/10/2020, 23/10/2020 and 30/10/2020 at the hearing.   

Mr Desmond confirmed on the second day of the hearing that he understood the complaint taken by the complainant under the Payment of Wages Act 1991 concerned a complaint seeking arrears of payment for all public holiday and annual leave entitlements accrued to the complainant during his period of sick leave. Mr. Desmond submitted in defence of the claim, that no entitlement arose to the complainant during his sick leave period in respect of accrued annual leave and public holiday entitlements.

Summary of Evidence of Mr Martin Desmond, Director of the Respondent Company

Mr Desmond stated that the complainant commenced employment with the respondent company on the 2/9/2020. He had received a contract of employment which the complainant signed. He stated that the complainant worked for eight weeks in total. He further stated that the complainant’s last day when he attended work was on the 23/10/2020. On this date the complainant informed Mr Cunningham that a member of his family was ill, and he needed to take unpaid leave. Mr Cunningham advised him that he had accrued three annual leave days, and he was paid for these days the following week. Mr Desmond confirmed that the complainant did not work any days after the 23/10/2020.

Further to a question from me Mr Desmond confirmed that he did not receive the first medical cert dated 24/10/2020 - 23/11/2020 from the complainant. He further stated that his understanding was that the complainant had taken unpaid leave during that period to return to Poland. He confirmed that the respondent received the first medical certificate dated 24/11/2020- 19/12/2020 from the complainant on the 27/11/2020.  Mr Desmond stated that the complainant did not contact him or anybody else until 25/10/2020 when Mr Cunningham received a WhatsApp message asking for the respondent’s company registration number.  Mr Cunningham received a further message on the 27/11/2020. Both messages were exhibited at the hearing in a paper form and exchanged with the other side. The message dated 27/11/2020 stated; -

“Boss I forget about You here is medical cert situation in Poland terrible is so hard to get in hospital nothing os change we keep doing checks and treatments for Monikas dad”. 

Mr Desmond stated that he did not receive any medical certificates from the complainant as indicated in his written submission dated 10/8/2023 which was exhibited at the hearing. Mr Desmond stated, that as referred to in the submission he did not receive certificates, for the following dates: 24/10/2020-23/11/2020, 20/12/2020-28/5/2021, 31/7/2021-7/11/2021, 20/12/2021-6/3/2022, 20/4/2022-20/5/2022, 18/6/2022-16/8/2022, 10/9/2022-7/10/2022 and 9/10/2022- 7/11/2022.

Mr Desmond stated that he didn't reply to any WhatsApp texts as they were so random. Furthermore, he stated that for 18 months of the total period of 24 months of the complainant’s absence the respondent did not receive any medical certificates. He stated that the information they received was random and in Polish, that months would go by without any contact from the complainant.

Mr Desmond stated that on 17/11/2022 he received an e-mail, exhibited at the hearing, from the complainant seeking payment for any annual leave days that he had accrued.  He stated that further to the complainant’s e-mail dated 17/11/2022 he realised that the complainant was due something as he referred in his e-mail to the “overdue payment”. Subsequently he started to receive telephone calls from the complainant’s representative Ms Borkowska, seeking payment on behalf of the complainant in respect of his accrued annual leave and public holiday entitlements. He advised Ms Borkowska that he needed to go through all the correspondence he had received.

Mr Desmond stated that on 17/11/2022 he wrote to the complainant and this letter was exhibited at the hearing.   He stated that he received calls from Ms Borkowska about once a week, seeking payment for all the complainants outstanding alleged entitlements.

Cross-examination

Under cross-examination Mr Desmond confirmed that he received the complainant’s letter of resignation. Furthermore, it was put to Mr Desmond that the complainant’s understanding of his employment situation was that he was still employed up to 17/11/2022. In reply Mr Desmond stated that he wasn't sure of the complainant’s standing as an employee as he hadn't heard from him in a long time.

Summary of Evidence of Mr Paul Cunningham, Manger with the Respondent Company

Mr Cunningham stated in evidence that the complainant advised him on 23/10/2020 that his father-in-law was ill and that he wouldn't be able to continue working as needed to take unpaid leave. Mr Cunningham informed the complainant that he would be paid for any annual leave entitlements which he had accrued at that point. Mr Cunningham denied that the complainant handed him a medical certificate from a doctor in Blanchardstown on the 23/10/2020.

He stated that he received a WhatsApp message from the complainant in October 2020 looking for the company registration number of the respondent company. The next contact from the complainant was when he received a WhatsApp message dated 27/11/2020 and received a medical certificate via the message dated 24/11/2020 the text referred to the complainant’s father-in-law.

Mr Cunningham stated that he didn't understand the medical certificate as it was in Polish, nor did he understand that it referred to the complainant. He stated the next medical certificate that he received was dated May 2021, he didn't understand the certificate as it was in Polish. However, he recognized the complainant’s surname on it. On this occasion he did not receive any text from the complainant just the medical certificate.

He stated the next medical certificate he received was in November 2021, the complainant did not send a text to him just forwarded the medical certificate. The next medical certificate was received in March – April 2022. He stated that he received a screenshot of the medical certificates from the complainant. He received a medical certificate in May 2022 for the period May-June 2022 and the next cert was received in August 2022 for the period August - September 2022. He said he did not receive any texts from the complainant with any of his medical certificates. He stated that the last certificate he received from the complainant was dated 8 October 2022. Mr Cunningham said that it is the first time at the hearing that he is seeing all the other medical certificates allegedly sent by the complainant.

Mr Cunningham confirmed that he did understand that the medical certificates received from the complainant related to him.

Cross-examination

Under cross examination Mr Cunningham stated that he understood that the medical certificate dated 24/11/2020 related to the complainant. Mr Cunningham agreed that in hindsight the complainant’s arrangement regarding leave had changed from unpaid to sick leave. 

Preliminary Issue -The Applicable Legislation

An issue arose on the second hearing date in relation to the applicable legislation under which the alleged contraventions in the present complaint should be considered. The complainant’s representative referred the complaint to the WRC under the Payment of Wages Act 1991 claiming that the respondent had not paid the complainant the annual leave and public holiday entitlements which he had accrued while absent on extended sick leave. The complainant’s representative confirmed at the hearing that she was unsure when completing the online complaints referral form under which statute she should refer the complaints.  At the outset of the oral hearing the complainant sought to amend the complaint referral form and have the matter considered for adjudication in accordance with the relevant provisions of the Organisation of Working Time Act 1997. I note that Mr Desmond, on behalf of the respondent, indicated on the second hearing date that his  understanding of the complainant’s correspondence and of the complaint which was taken under the Payment of Wages Act 1991, was that the claim related to an alleged entitlement  to annual leave and public holidays which it is alleged he accrued while he was on sick leave.

In considering this matter, I have noted the judgement of McKechnie J. in the Supreme Court case of County Louth VEC –v- The Equality Tribunal [2016] IESC 40where it was held that: “As is evident from the aforegoing (para. 19 supra), the initiating step for engaging with the provisions of the 1998 Act is that an applicant … seeks redress by referring the case to the Director” (s.77 (1) of the 1998 Act). In the absence of any statutory rules to facilitate such a process, the Tribunal itself, in the form of guidelines, has drafted and published what is an appropriate form to use in this regard …… I agree with the view that there is nothing sacrosanct about the use of an EE1 Form to activate the jurisdiction of the Tribunal. I see no reason why any method of written communication could not, in principle, serve the same purpose; in fact, the Tribunal itself has so held in A Female Employee v. A Building Products Company DEC-E2007-036. Indeed, it is arguable that even a verbalised complaint would be sufficient to this end.”

I note that this judgement related to a claim under the Employment Equality Acts, I am satisfied that the reasoning of McKechnie J. in relation to the referral of complaints to a quasi-judicial body using a non-statutory form is applicable to the present case. The online complaint referral form used by the WRC is not a statutory form, and therefore, a complainant is not legally obliged to use this form when referring a complaint to the WRC.

I note that the complainant seeks to amend the complaint form by adding an additional complaint under the Organisation of Working Time Act 1997, as amended.  I am satisfied that the Respondent understood that the complaint taken by the complainant under the Payment of Wages Act 1991 related to a claim for an alleged entitlement to annual leave and public holidays while the complainant was on long term sick leave from his employment. Therefore, I am satisfied that the respondent was fully aware of the nature of the alleged contraventions underpinning the proceedings well in advance of the oral hearing. I further note that the respondent did not object to this application.

In the circumstances, I am satisfied that I have jurisdiction to inquire into the present complaint in accordance with the provisions of Section 19 and 23 of the Organisation of Working Time Act 1997.   

Complaint under Section 6 of the Payment of Wages Act 1991 - CA-00055183-001

As no evidence or submission were put before me in respect of this complaint, I find this complaint is not well founded.

Complaint under section 27 of the Organisation of Working Time Act, 1997 - CA-00055183-004

The complainant seeks payment in respect of his public holiday entitlements for all public holidays falling while he was absent on extended sick leave over a two-year period from the 24/10/2020 to the 29/10/2022.

Cognisable period

The cognisable period for complaints pursuant to section 27 is set out in section 41(6) of the Workplace Relations Act. It states: ‘Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.’

Section 41(8) provides that the cognisable period can be extended by a further 6 months, should the Complainant establish reasonable cause in the late presentation of the complaint. There has been nothing put forward to establish reasonable cause for the delay. 

The complainant referred his complaints to the Director General of the WRC on 19/2/2023. Therefore, the cognisable period in the context of this claim is from the 20/08/2022 to 19/02/2023. The Complainant resigned his position effective from the 29/10/2022. 

Section 21 of the Act provides as follows:

21. Entitlement in respect of public holidays

(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.

The Third Schedule of the Act provides that “Each of the following are cases mentioned in Section 21(5) of absence by the employee concerned from work immediately before the relevant holiday:

2.such an absence in excess of 26 consecutive weeks, by reason of an injury sustained by the employee in any accident (not being an accident referred to in paragraph 1) or by reason of any disease from which the employee suffers or suffered”.

The complainant was absent from work on continuous sick leave from 24/10/2020 to 29/10/2022 when he resigned from his employment. The combined effect of the provisions of Section 21(5) and the Third Schedule of the Act when applied to the present case means that the complainant is not entitled to compensation or cesser pay in respect of any public holidays that occurred after 23/04/2021, as at that stage the complainant was absent from work on sick leave for more than 26 weeks.   As the present complaint was submitted to the Director General of the WRC on 19/02/2023, I only have jurisdiction to inquire into contraventions of the Act which may have occurred in the six-months preceding the referral, i.e. the period from 20/08/2022 to 19/02/2023.

In the circumstances, I find that the complainant did not have an entitlement to cesser pay in respect of any public holiday occurring during this period. Accordingly, I find that the complaint in relation to the alleged contraventions of Section 21 of the Act is not well founded.

Complaint under section 27 of the Organisation of Working Time Act, 1997 - CA-00055183-003

The complainant is seeking payment on the cessation of his employment for his untaken annual leave accrued during his purported certified sick leave absence from the 24/10/2020 to the 29/10/2022.

Section 19 of the Organisation of Working Time Act sets out the entitlement to annual leave as follows:

“19. Entitlement to annual leave

(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.”

In relation to taking annual leave, section 20 of the 1997 Act provides as follows:-

“(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.”

Entitlement to cesser pay

Section 23 of the 1997 Acts sets out an employee’s entitlement to cesser pay in compensation for annual leave not taken as follows:-

“23. Compensation on cesser of employment

(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.“

Section 19 of the 1997 Act sets out different ways for calculating an employee’s annual leave entitlement.  Each of them is based on an employee having worked hours in the leave year.  The statutory entitlement of an employee who works at least 1,365 hours is to four working weeks of paid annual leave in a leave year. A leave year for the purpose of the 1997 Act is the period from 1 April to 31 March.

Cesser pay is the ‘allowance in lieu’ referred to in the Working Time Directive. Section 23 of the Act provides that it is payable for the ‘relevant period’. Typically, the ‘relevant period’ is the current leave year (as the obligation is for annual leave to be taken within the leave year).   Section 23(1)(b)(iii) addresses ‘relevant period’ where the employee accumulates annual leave while on certified sick leave.

The effect of Section 23 means that on termination of employment payment in lieu of untaken accrued annual leave will apply to leave which was untaken because of certified illness in circumstances where the employee leaves the employment within a period of 15 months following the end of the year during which the statutory leave entitlement accrued.

The complainant is seeking payment on the cessation of his employment of the untaken annual leave accrued during his purported certified sick leave absence from the 24/10/2020 to the 29/10/2022.  The complainant resigned his position by way of his written resignation sent by email on the 13/10/2022 with effect from the 29/10/2022. It was agreed between the parties that the complainant earned €460 gross per week at an hourly rate of €11.50.

This complaint was referred to the WRC on 19/2/2023.  The complaint has been presented within the 6-month timeframe provided in section 41(6) of the Workplace Relations Act 2015. 

I am satisfied based on the evidence adduced at the hearing that the complainant had an accrued leave entitlement based on section 20(1)(c)(iii) of the 1997 Act, in respect of the 2021/2022 and 2022/2023 leave years. 

The first issue for me to determine is the amount of accrued annual leave that the complainant is entitled to further to Section 20 (1)(c)(iii) of the Act. I note the wording of Section 20 (1)(c)(iii) (II) refers to the provision of a medical certificate to the employer in the following terms; - “has provided a certificate of a registered medical practitioner in respect of that illness to his or her employer”.

There is a conflict of evidence between the parties regarding whether the complainant furnished all medical certificates over a two-year period to the respondent. The complainant submitted that he furnished medical certificates in respect of his total period of sick leave absence from the 24/10/2020 to the 29/10/2022 by sending a photograph of each certificate by WhatsApp messages to Mr Cunningham apart from the first medical certificate which he claimed he handed to Mr Cunningham.  This is disputed by Mr Desmond and Mr Cunningham who submitted that they only received on a random basis, medical certificates which were in Polish and sent via WhatsApp messages to Mr Cunningham. Both Mr Desmond and Mr Cunningham gave direct evidence that they received 8 medical certificates out of a total number of 15 purported to be sent by the complainant. It is strongly denied by Mr Cunningham that the complainant handed him a medical certificate from a doctor in Blanchardstown in respect of when he commenced sick leave on the 24/10/2020. 

I found the evidence of Mr Cunningham to be clear and cogent. On the balance of probabilities, I prefer the evidence of Mr Cunningham which was supported by Mr Desmond’s evidence, that he only received 8 medical certificates via WhatsApp messages out of a total number of 15 purported to be sent by the complainant.

I have no doubt that the complainant had a serious medical condition and can appreciate the difficulties experienced by the complainant who was suffering from a serious mental health condition during this period. Moreover, I am mindful based on the evidence of the complainant that he was in receipt of an illness benefit from the Department for 2 years which required certification. However, I found his evidence regarding the submission of his medical certificates to be vague and inconsistent at times. The complainant did not produce any documentary evidence to support his assertion that he sent all his medical certificates; he did not exhibit a copy of the first medical certificate allegedly handed to Mr Cunningham, nor did seek an acknowledgment of receipt regarding any certificate forwarded by him and stated on several occasions in his direct evidence that he “probably” sent various certificates via WhatsApp messages. 

There is a clear obligation upon an employee who seeks to rely on Section 20 (1)(c)(iii) to provide a medical certificate from a doctor in respect of that illness to their employer. It is my view that at a minimum a prudent employee would request an acknowledgement of receipt from their employer to ensure the safe receipt of any medical certificates furnished.   

Accordingly, I find, based on the evidence of Mr Cunningham supported by Mr Desmond’s evidence, and in the absence of any cogent evidence to the contrary from the complainant, that in my calculation of the complainant’s accrued annual leave during the leave years of 2021/2022 and 2022/2023 I am limited to the periods when the respondent received a medical certificate certifying the complainant as unfit for work. Based on the written submission of the respondent and oral testimony of Mr Cunningham and Mr Desmond, I find the following periods were correctly certified: 29/5/2021 – 20/7/2021, 8/11/2021 – 19/12/2021, 7/3/2022- 19/4/2022, 21/5/2022-17/6/2022, 17/8/2022- 9/9/2022, and 8/10/2022- 8/10/2022.

I accept that the Complainant earned €460 gross per week over 5 days and accept that the complainant was entitled to annual leave of 20 days per year based on working 1,365 hours during the holiday year as set out in his contract of employment. 

Based on the above finding, I conclude that the complainant was absent on certified sick leave for 127 days during the period 1/4/2021-31/3/2022 and 70 days during the period 1/4/2022 – 29/10/2022. Accordingly, I find that the complainant is entitled to 10.8 days annual leave accrued during the leave years for 2021/2022 and 2022/2023.

I find that the complainant is entitled to a cesser payment in respect of €994 for the outstanding annual leave accrued during the specified periods of certified sick leave as set out above, during the leave years for 2021/2022 and 2022/2023.

Complaint under Section 6 of the Payment of Wages Act 1991 - CA-00055183-001

As no evidence or submissions were put before me in respect of this complaint, I declare that this complaint is not well founded.

Complaint under section 27 of the Organisation of Working Time Act, 1997 - CA-00055183-004

For the reasons set out above I declare that this complaint is not well founded.  

Complaint under section 27 of the Organisation of Working Time Act, 1997 - CA-00055183-003

I declare this complaint to be partly well founded. I direct the respondent to pay the complainant €994 in respect to a cesser payment for the outstanding annual leave accrued during the specified periods of certified sick leave as set out in this decision, which I found were correctly certified by the complainant based on the evidence adduced at the hearing, during the leave years 2021/2022 and 2022/2023. Furthermore, I direct the respondent to pay the complainant €100 in compensation for the breach of the Act.

Sick leave – certified sick leave – annual leave entitlement accrued during sick leave – cesser pay