Complainant

Respondent

Parties

Lauren  Rodriguez

Institute Of Public Health

Representatives

In person 

Grace Lee Lewis Silkin Ireland LLP

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-00068090-001

13/12/2024

The complainant was employed by the respondent as a Public Health Development Officer. Employment commenced on 5th December 2018 and ended on 13th December 2024. This complaint was received by the Workplace Relations Commission on 13th December 2024.

Factual Background (as per complainant’s own words)

My gross annual salary was €68,446, with a gross monthly salary of €5,703.68.

I carried forward accrued annual leave from 2023 into 2024, in addition to leave accrued during 2024 and public holidays as per statutory entitlements.

Based on the Respondent's own leave tracking, my total leave entitlement for 2024 was 339.5 hours.

Throughout 2024, I used only 264.5 hours of annual leave.

Therefore, at the termination of my employment, I had 75 hours of accrued, untaken leave remaining.

Additional Facts Relating to Leave Management and Payment 

On 3 December 2024, I received an email from Edwina Fogarty, HR Officer for the Respondent, which acknowledged awareness of Section 23 of the Organisation of Working Time Act 1997. In that email, the Respondent:

• Acknowledged my "complicated and extenuating circumstances" during 2024;

• Confirmed that "payment is not an option" despite their obligations under Section 23 OWTA;

• Suggested that I use pre-booked leave prior to my agreed termination date of 13 December 2024, rather than paying me for the outstanding leave;

• Stated that there were "errors in HRP" (the Respondent’s leave management system) that required correction.

The Respondent’s insistence that I use remaining leave before my resignation, without properly correcting leave records or offering payment as required by law, was unreasonable and contrary to Section 23 of the OWTA.

Further, the suggestion that I "may wish to consider today as your final day of work" imposed additional undue pressure and undermined my ability to fairly manage my final weeks of employment, particularly considering the personal circumstances already affecting me.

Legal Argument

Section 23(1)(a) of the OWTA clearly provides that where an employee ceases employment and has accrued but untaken statutory leave, the employee is entitled to compensation equivalent to the pay for that leave.

The Respondent’s claim that I had exhausted or exceeded my leave entitlement is factually incorrect. I had an outstanding balance of 75 hours of accrued leave at the time of resignation, fully supported by leave records.

Based on my contractual 35-hour working week, the value of the 75 hours equates to approximately two full working weeks of pay.

My gross weekly salary was approximately:

• €68,446 / 52 = €1,316.27 per week

• 75 hours / 35 hours = 2.14 weeks

• Therefore, the value of unpaid leave is approximately €2,815.80 gross.

Response to Respondent’s Emphasis on Maternity Leave and Sick Leave

The Respondent places significant emphasis on my periods of maternity leave and certified sick leave during 2023 and 2024.

I respectfully submit that this focus is misplaced.

Under the Organisation of Working Time Act 1997 and the Maternity Protection Acts 1994 and 2004, employees on maternity leave are deemed to remain in employment for the purposes of accruing annual leave and public holiday entitlements.

Similarly, certified sick leave periods are treated as periods of employment for the purpose of annual leave accrual, in accordance with Irish employment law and relevant case law. 

Accordingly, my entitlement to annual leave continued unaffected during maternity and certified sick leave, and the Respondent’s calculations should have properly reflected this, without diminishing my accrued entitlements.

I respectfully request that the Adjudicator focus on my total accrued and untaken leave at the time of termination, as required under Section 23 of the OWTA, irrespective of the nature of any protected leave periods taken during the year.

Additional Circumstances

During 2024, I experienced significant emotional distress due to the death of my mother in the United States on 12 August 2023 and the birth of my daughter on 3 August 2023.

The Respondent was aware of these personal circumstances yet failed to properly facilitate a fair and transparent approach to the scheduling and payment of my accrued leave during my notice period.

This compounded my distress and affected my ability to transition out of the organisation in a dignified and fair manner after six years of service.

Conclusion

For the reasons set out above, I respectfully request the WRC to:

• (a) Declare that my complaint is well-founded;

• (b) Order the Respondent to pay the amount of €2,815.80 gross as compensation for unpaid accrued statutory leave pursuant to Section 23 of the OWTA;

• (c) Consider awarding additional compensation in recognition of the emotional distress and hardship caused by the Respondent’s failure to comply with its statutory obligations.

 BACKGROUND

The Complainant resigned on 15 November 2024 and her last day of employment was 13 December 2024. The Complainant’s gross salary was €68,446 per annum and her gross monthly pay was €5,703.68 at the time of her resignation.

The Complainant commenced maternity leave on 25 July 2023, and she returned to work on 26 January 2024. After the Complainant returned to work, she subsequently went out on certified sick leave from 31 January 2024 to 27 March 2024.

Several meetings were held between the Complainant and the Respondent during the transition period of the Complainant returning to work from sick leave which included discussions related to taking her annual leave which had accrued during maternity leave and sick leave periods. The Complainant resumed work on 1 April 2024 on a part-time basis and returned to a full-time basis, equivalent to 35 hours per week, on 1 July 2024.

ANNUAL LEAVE

 The OWTA sets out the statutory framework for annual leave entitlements in Ireland. According to section 19 of the Act, an employee is entitled to statutory annual leave based on the hours worked in a leave year.

Section 19 of OWTA provides as follows:

“19. (1) An employee shall be entitled to paid annual leave equal to –

(a) 4 working weeks in a leave year in which the employee 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% of the hours worked in a leave year, (but subject to a maximum of 4 working weeks).

The Respondent’s leave year runs from 1 January to 31 December.

Furthermore, section 23 of the OWTA specifically addresses the payment of accrued statutory annual leave on termination of employment. It states:

 “(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”.

It is important to note that the reference to “annual leave” in the context of the section 23 of the OWTA is understood to mean the statutory entitlements as outlined in section 19 of the OWTA.

The Complainant’s normal hours of work were 35 hours per week, Monday to Friday as per her contract of employment. Considering the Complainant worked more than 1,365 hours in a leave year, the Complainant’s statutory annual leave entitlement was 140 hours.

The Respondent’s Employee Handbook states in the Holiday Entitlement & Conditions section of the Handbook that a maximum of one working week can be rolled into the following year.

Furthermore, the Employee Handbook states that in the event of the termination of employment any holidays accrued but not taken in the current holiday year will be paid for. However, where an employee has provided notice to terminate their employment, the Company may require that any outstanding annual leave entitlement be taken in this notice period. In the event that an employee has taken holidays which have not been accrued pro-rata in the holiday year, then the appropriate payments will be deducted from the employee’s final salary.

The Respondent encouraged the Complainant to take her accrued annual leave during 2024. The Complainant indicated that she wanted to take a longer leave break over the Christmas 2024 period to allow her to visit her family in the US. On 18 April 2024, Edwina Fogarty, HR Officer with the Respondent, prepared a work schedule with the Complainant for 2024 encouraging the Complainant to plan her annual leave for that year.

FY2023: 1 January 2023 - 25 July 2023

The Complainant did not carry over any statutory annual leave into 2023 from 2022. The Complainant took 124 hours statutory annual leave before commencing her maternity leave on 25 July 2023 resulting in 16 hours of untaken statutory annual leave left at the commencement of her maternity leave.

25 July 2023 - 31 December 2023 

In accordance with the Maternity Protection Acts, the Complainant continued to accrue statutory annual leave during her maternity leave period from 25 July 2023 to 26 January 2024. The Complainant accrued approximately 58.33 hours of annual leave from the period 25 July 2023 to 31 December 2023.

The Complainant’s accrued statutory annual leave entitlement was calculated in accordance with the OWTA as follows: • 4 working weeks / 12 months = 1/3 of a working week per month. • 5 months (25 July 2023 – 31 December 2023) x 1/3 of a working week = 5/3 of a working week. • Using the Complainant’s standard working week of 35 hours, this equates to approximately 58.33 hours (5/3 x 35 hours.

FY2024-1 January 2024-26 January 2024.

The Complainant accrued approximately 11.67 hours of statutory annual leave during the remainder of her maternity leave period from 1 January 2024 to 26 January 2024. 19. The Complainant’s accrued statutory annual leave entitlement was calculated in accordance with the OWTA as follows: • 4 working weeks / 12 months = 1/3 of a working week per month. • 1 month x (1/3 of a working week) = 1/3 of a working week. • Using the Complainant’s standard working week of 35 hours, this equates to approximately 11.67 hours (1/3 x 35 hours.)

Therefore, upon the Complainant’s return to work on 26 January 2024 after maternity leave, her total statutory annual leave entitlement accrued was approximately 86 hours (16 hours + 58.33 hours + 11.67 hours). FY2024-26 January 2024 –13 December 2024.

The Complainant continued to accrue statutory annual leave for the remainder of 2024, from 26 January 2024 up to her last date of employment on 13 December 2024. This equated to approximately 128.33 hours.

The Complainant’s accrued statutory annual leave entitlement for the period from 26 January 2024 to 13 December 2024 was calculated in accordance with the OWTA Act as follows:

• The Complainant works over 1,365 in the year and so, is entitled to 4 working weeks of statutory annual leave.

• Using the Complainant’s standard working week of 35 hours, this equates to 140 hours of statutory annual leave for the entire year of 2024.

• Bearing in mind that the Complainant already accrued 11.67 hours of statutory annual leave while on maternity leave. The Complainant’s statutory annual leave entitlement for the remainder of 2024 is 128.33 hours (140 hours – 11.67 hours).

Public Holidays accrued during Maternity Leave and Sick Leave

Under the Maternity Protection Act 1994 and 2004, employees on maternity leave are treated as if they are still in employment for all purposes related to their employment, except for the right to remuneration. This includes their entitlement to public holidays during the period of maternity leave.

During the period of the Complainant’s maternity leave from 25 July 2023 to 26 January 2024, the Complainant was entitled to the benefit of five public holidays:

- August Bank Holiday

- October Bank Holiday

- Christmas Day

- St. Stephens Day

- New Year’s Day 25.

Under the OWTA, employees on sick leave are treated as if they are still in employment for all purposes related to their employment including the accrual of public holidays. While the Complainant was on sick leave, the Complainant was entitled to the benefit of two public holidays:

- February Bank Holiday

- St. Patricks Day 26.

 In accordance with the OWTA, the Complainant accrued an additional 49 hours annual leave by way of benefit of the public holidays that occurred during her maternity leave and sick leave periods. 

The Complainant took 296 hours of annual leave in 2024. A copy of the Complainant’s annual leave records for 2024 was made available.

Summary of Statutory Annual Leave entitlements

For the sake of clarity, a summary of the Complainant’s statutory annual leave entitlements is set out below;

(a) 1 January 2023 to 25 July 2023- untaken accrued annual leave: 16 hours

(b) 23 July 2023 to 31 December 2023: 58.33 hours

(c) 1 January 2024 to 26 January 2024: 11.67 hours

(d) 26 January 2024 to 13 December 2024: 128.33 hours.

(e) Public Holiday benefit: 49 hours.

Therefore, the Complainant’s total statutory annual leave entitlements at the date of termination of employment are as follows:

a) Total statutory annual leave entitlement in 2024: 263.33 hours

b) Total annual leave taken by the Complainant in 2024: 296 hours.

The Complainant took approximately 32.67 hours above her statutory annual leave entitlement for the leave year of 2024. Despite the Employee Handbook confirming that the Respondent will deduct from an employee’s final salary any annual leave taken that has not yet been accrued pro-rata in the holiday year, the Respondent decided not to recoup this over payment from the Complainant in this instance.

Section 27(3) of the OWTA provides as follows

(3) 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 the circumstances but not exceeding 2 years remuneration in respect of the employee’s employment.

As there has been no contravention by the Respondent of section 23 of the OWTA, or of any other section of the OWTA, the Complainant’s complaint must fail.

Conclusion 

Notwithstanding the above arguments, it is the Respondent’s position that the Complainant was treated appropriately and lawfully by the Respondent. The Respondent does not owe the Complainant any accrued annual leave entitlements.

The Complainant’s claim under the OWTA must fail for the reasons set out above.

At the hearing of the complaint the representative for the Respondent cited the case ADJ – 00019188 and sent copies of the decision after the hearing, the Complainant was sent a copy of the decision by WRC staff. This complaint is very similar to the instant complaint, and I now quote the following from that decision:

‘The complainant’s annual leave comprised of 20 days arising from the Organisation of Working Time Act (and arising from the Directive) as well as four additional days arising from his contract of employment.

It is clear from the TSN decision that article 7 of the Directive enshrines the right to 20 days of annual leave, and this reach is not extended to additional days provided by contract, national law or a collective agreement. Different rules can apply to annual leave, whether it falls within the Directive 20 or whatever additional days the employee may claim.’

Under a strict interpretation of the Organisation of Working Time Act the respondent has correctly calculated the outstanding holiday leave payment due at the cesser of employment and I must therefore find that the complaint as presented under the Organisation of Working Time Act is not well founded.

Under a strict interpretation of the Organisation of Working Time Act the respondent has correctly calculated the outstanding holiday leave payment due at the cesser of employment and I must therefore find that the complaint as presented under the Organisation of Working Time Act is not well founded.

Organisation of Working Time Act / cesser pay

Untaken and accumulated annual leave