Complainant

Respondent

Parties

Anne-Marie  Collins

Avista

Complainant

Respondent

Anonymised Parties

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Representatives

Ciar Murtagh IBEC

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-00061191-001

24/01/2024

The complainant submits that she did not receive annual leave entitlement.

The complainant submits that she commenced working in 2017 and as she had previously worked with the respondent she requested and was granted her previous annual leave entitlement.  This was 2.5 extra days annually which were called privilege days.  These were verbally agreed with her manager Mr A and when he requested in 2020 details of her annual leave, she included these days and was advised that they could not be carried over and nobody disputed the actual days.  A grievance was raised, heard by Mr A and the decision appealed and Mr B agreed 28.5 days could be carried over.  The complainant went on maternity leave and sent details of her annual leave to manager Ms C and her allocated 28.5 was reduced to 26 days.  The complainant submits that she is owed 7.5 days arising from 2021, 2022 and 2023 as well as a further 2.5 regarding 2024.

The complainant submits that when she rejoined the respondent she joined as a "new joiner" for pension purposes and commenced at the top of the salary scale for Grade 4. She submitted there was no agreement to use annual leave within 3 months of the year and she raised a grievance and the privilege days were always included in her annual Leave and were granted in 2017, 2018 and 2019. She never queried annual leave entitlements, as they were agreed.  The complainant was on Covid Leave during 2022 and returned on a phased basis and was on sick leave from 16/09/22 to 14/10/22, and commenced maternity leave on 17/10/22.

The complainant submitted that that the additional 2.5 days were never once disputed until September 2023, when she sent in her return-to-work date following maternity leave and she made her WRC complaint in January 2024. She had always received these additional 2.5 days which had never been disputed and they were referred to in the grievance of April 2021 and were granted without dispute in her grievance in April 2021, where carry over hours, included privilege days, were all granted.   She submitted that nobody involved in her grievance had ever disputed this annual leave entitlement, which included additional 2.5 days.

The complainant’s evidence was that she had previously worked for the respondent and her privilege days that she had received was never disputed.  There was an issue with carrying forward days and that was why she raised the grievance.  She had been on maternity leave and sent in her annual leave details and it was the first time that the 2.5 days were disputed in September 2023.  She said although she had received this leave for four years she was told that she was not entitled to it.  When she commenced employment she asked for same benefits that she had received previously and this included being allowed to finish early and she was also allowed to start at the top point in the scale..

Under cross examination she said that her original grievance was not specifically about privilege days and had been mostly about carrying forward days.  She did not specifically raise the matter with HR and the start and leave times was also a verbal agreement. She did not dispute the circulars referred to by the respondent.

It was submitted that the complaint is out of time as the complainant refers to dates of contravention in 2017, 2018, 2019.

The respondent submitted that the Complainant commenced employment with the respondent on 25/09/2017 as a Finance Administrator Clerical Grade 4.   The respondent is funded separately by the Health Service Executive (HSE) and operates autonomously.  The Complainants annual leave entitlement as per her signed contract of employment from 25/09/2017 was for 24 days. Annual leave is allocated by the HR Central Team (Dublin) to all new entrants based on grade and profile of the role. As the Respondent is a Section 38 organisation, it is inferred that the Respondent follow HSE National Agreements. In line with, 006/2014 and 005/2009 Circulars, all new entrants after 01/04/2012 are not entitled to privilege days. The Complainant commenced employment some 5 years later September 2017, and thus is not eligible to receive privilege days and the Respondent can verify that annual leave allocation for the Complainant is in line with all other new starters who started as Clerical – Grade 4 with the Respondent.  Furthermore, the Complainant moved from a previous Grade 5 role within a Section 38 organisation to private sector role, she then applied for a role and was successful for a Grade 4 with the Respondent, this resulted in lower annual leave allocation in line with standardisation for new joiners in line with the HSE Circulars.  Annual leave within her previous Section 38 role was not transferable as she joined from a Private Sector role and broke her Public Service tenure.   Additionally, the Complainant entered the Pension scheme as a new joiner in 2017 reflected on her payslips.

In 2019, funding was received from the HSE with regards to implementation of the standardisation circulars. As a Section 38 organisation, the Respondent cannot authorise for implementation of any circular unless the HSE agree and provide the funding with the Respondent in advance of implementation. In 2019, following national agreement and negotiation of annual leave changes to the final cohort of employees (Health and Social care professionals 034/2019), in line with funding approved and received from the HSE for all cohorts, annual leave was then increased for all staff grades including clerical grades. The Complainant then received an additional 2 annual leave days bringing her entitlement from 24 days to 26 days. Her yearly annual leave balance provided for, to current year is 26 days.

Following a companywide annual leave audit in late 2020/early 2021, it became apparent that a number of employees including the Complainant had not used her 2020 balance of leave while working from home during the first year of the Covid pandemic.  The Complainant was not granted permission to carry over her full annual leave balance to 2021. On 21/02/2021, the Complainant lodged a grievance in relation to her annual leave carry over in line with the Respondents Grievance procedure. The meeting was led by the Complainants line manager Mr A who did not uphold the Complainants grievance. This Complainant appealed the decision heard by Mr B. The outcome was to grant approval for the Complainant to carry over her 2020 annual leave balance to 2021 which was to be used within 3 months of the year in line with the Annual leave policy. This was granted on an exceptional basis only.

Grievance meetings held were in relation to the carryover of annual leave - not the application of company privilege days. The Respondents position was provided for in relation to her annual leave entitlement in accordance with her grade / role profile while factoring in HSE national guidelines. No supporting evidence has been provided by the Complainant with regards to an entitlement to annual leave outside of Statutory leave and or the remit of National Guidelines. On 17/10/2022, the Complainant commenced Maternity Leave.

On 24/05/2021 Ms C engaged with the complainant and there was no further discussion on this matter raised by the Complainant until 2023 when a return-to-work conversation was taking place.  In line with supporting and planning Ms Collins return to work, Ms C followed up with the Complainant and sent an internal email to query this detail where it was confirmed the complainant’s annual leave entitlement is 26 days per annum.  It was advised that over 3 years there was a deduction needed of 54.02 hrs.  Ms Collins replied there was no overstatement of annual leave and referred to a verbal agreement and no copy of agreement has been forthcoming to date. The complainant was advised any matters arising could be raised through the grievance procedure and that it was their understanding that her annual leave entitlement is 26 days per year. It was submitted that 2017 queries was with regards to salary which would impact payment of annual leave and that other clerical 4 staff who received privilege days had started before 2012.  The complainant advised her agreement with the respondent was a verbal agreement.  The Respondent provided the Complainant with a copy of her terms and conditions of employment.  There is no correspondence received or recorded on file to support that privilege days were granted by management, and this falls outside of HSE guidance and the abolishment of Privilege days in 2012.

It was submitted that all statutory leave was provided to the complainant in line with the legislation and the Complainant has no entitlement to any additional privilege days.

The Respondent submits the claims taken are without merit and therefore must fail, and the complainant has received her statutory annual leave entitlement. 

The complainant submits that she was granted 2.5 days, per annual leave year, referred to as privilege days in addition to other annual leave and that the respondent will no longer provide these to her and they are outstanding with regards to 2021, 2022, 2023 and 2024.  The respondent submits that there is no entitlement to any such days. 

The complaints were received on 24/01/2024 and Section 41 (6) of the Workplace Relations Act 2015 provides:

“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:

“an adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause”.

The complainant in seeking to rely on Section 41(8) of the Act submits that in the first instance, she was unaware the respondent would not continue to provide her with the privilege days and thereafter, she raised a grievance.  I do not find that this provides reasonable cause and therefore, in this instant case, I find that the cognisable period that the complaints refer to is 24/07/2023 to 23/01/2024.

Section 19(1) sets out that

“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):

DWT176 Tapastreet Ltd v Joseph Mitchell the Labour Court set out that a complaint under Section 19(1) relates to only the non-payment of statutory annual leave.   In effect, the Court held that no claims may arise under the Act from contractual agreements that are in excess of statutory.  As the complaint relates to what the complainant submits are a contractual agreement known as privilege days which are outside of the statutory entitlement provided for under the Act, I must find that the complaint is not well founded and dismiss the complaint.

I find that the complaint is not well founded and dismiss the complaint.

Statutory annual leave, privilege days,