FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : COUNTY LIMERICK VEC (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - MR JOHN COTTER DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appeal against Rights Commissioner Decision No: R-119067-Wt-11/MH
BACKGROUND:
2. This is an appeal by the worker of Rights Commissioner's Decision No: r-119067-wt-11/MH referred to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 21st February, 2013. The following is the Court's Determination:
DETERMINATION:
This is an appeal by Mr John Cotter against the decision of the Rights Commissioner No: r-119067-wt-11 in a claim against County Limerick VEC under the Organisation of Working Time Act, 1997 (the Act). For ease of reference the parties are referred to in this Determination as they were at first instance. Hence Mr Cotter is referred to as the Claimant and County Limerick VEC is referred to as the Respondent.
Background
The Claimant has been employed as a Teacher with County Limerick VEC since 1982.He was on Administrative Leave during the period 3rd May, 2005 to 22nd May, 2007 and then on Sick Leave since 23rd May, 2007 to date. The Claimant has exhausted his entitlement to paid sick leave and is on unpaid sick leave since 2nd December, 2011.
This matter was referred to the Rights Commissioner service of the Labour Relations Commission on 21stDecember 2011. In his complaint to the Rights Commissioner the Claimant alleged that his employer, the Respondent herein, had failed to provide him with annual leave and public holidays, contrary to Sections 19 and 21 of the Act for the period from May 2005 to the date of claim. The case was heard before the Rights Commissioner on 9thJuly 2012. The Rights Commissioner gave his decision on 16thOctober 2012 in which he held that the complaints made by the Claimant were not well founded.
Preliminary issues raised by the Respondent
The representative of the Respondent, Ms Paula O’Hanlon of IBEC, raised an objection to the jurisdiction of the Court to entertain the within claims. This objection was based on the two points, firstly, she contended that the Labour Court was restricted from hearing the claims in respect of the period from 3rdMay 2005 until 22ndMay 2007 as these have been adjudicated upon previously, by the Rights Commissioner in the first instance and on appeal by the Labour Court,viz.Rights Commissioner's Decision r-055483- wt-07/POB and Labour Court Determination No. DWT0868.
In Labour Court Determination No. DWT0868 the Court determined that the Respondent was not in contravention of Section 19 or 20 of the Act in relation to the Claimant. It affirmed and adopted the Rights Commissioner’s decision in relation to Public Holidays where he had decided that the Claimant was entitled to a benefit in respect of Public Holidays in the six month periodfrom 2nd February to 2nd August 2007,which occurred while he was on sick leave. The Court noted that the Respondent confirmed that these latter entitlements will be implemented when the Claimant returns to work.
Secondly, with regard to the claims in respect of the period from May 2007 to the date of claim, Ms O’Hanlon maintained that the Act provides for claims to be presented within six months prior to the alleged contravention of the Act or on application by the Claimant under section 27(5), this time-limit may be enlarged by up to a further 12 months, where reasonable cause is shown. However, no such application was made in this case.
The Claimant’s Position on the Preliminary Issues Raised
The Claimant submitted that the time limits under the Act should be set aside and the Court should proceed to rehear his claim in respect of the period covered by Rights Commissioner's Decision r-055483- wt-07/POB and Labour Court Determination No. DWT0868 and it should now consider the entirety of his complaints, i.e. from 3rdMay 2005 until 21stDecember 2011 (the date of claim). He based this contention on theRights Commissioner’s failure in Decision No: r-119067-wt-11 to take account of recent Court of Justice of the European Union (CJEU) judgements.
With respect to the complaints made for the period from 3rd May 2005 to 22nd May 2007 which have already been adjudicated upon by the Rights Commissioner and The Labour Court, he submitted that in light of the recent CJEU judgments, these should be set aside. In his earlier cases before the Rights Commissioner and the Labour Court the Claimant contended that there was no basis for restricting his entitlement to public holidays, to the six month period from 2nd February to 2nd August 2007.
He submitted that the distinction made by the Rights Commissioner and the Labour Court between annual leave and public holidays in this context had no basis in law and this is borne out by the CJEU judgments.
He submitted that in keeping with the CJEU rulings that annual leave and public holiday entitlements can be carried over from one leave year to the next, as he was unable to avail of this entitlement from 22nd May 2007 to 21st December 2011, he was entitled to pay in lieu of the public holidays which fell due during that time, or at least during the time since the period previously adjudicated upon in Rights Commissioner's Decision r-055483-wt-07/POB and Labour Court Determination No. DWT0868, viz., 2nd August 2007.
Summary of the Claimant’s Case for Annual Leave and Public Holidays
In advancing his complaint the Claimant relied on the decisions of the CJEU in Joined Cases C-520/06 and C-350/06Gerhard Schultz-Hoff v Deutsche Rentenversicherung Bund and Stringer and OthersvHer Majesty's Revenue and Customs[2009] IRLR 214and again inCase C-78/11 Asociac�on Nacional de Grandes Empresas de Distribucion (ANGED)vFederacion de Asociaciones Sindicales (FASGA) and Others [2012] IRLR 779and submittedthat the operative parts of these judgments were as follows:
- Joined CasesSchultz-Hoff and StringerC-350/06 andC-520/06–
Article 7(1) of Directive2003/88/ECof the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time must be interpreted as not precluding national legislation or practices according to which a worker on sick leave is not entitled to take paid annual leave during that sick leave.
Article 7( 1) of Directive2003/88must be interpreted as precluding national legislation or practices which provide that the right to paid annual leave is extinguished at the end of the leave year and/or of a carry-over period laid down by national law even where the worker has been on sick leave for the whole or part of the leave year and where his incapacity to work has persisted until the end of his employment relationship, which was the reason why he could not exercise his right to paid annual leave.
Article 7(2) of Directive 2003/88 must be interpreted as precluding national legislation or practices which provide that, on termination of the employment relationship, no allowance in lieu of paid annual leave not taken is to be paid to a worker who has been on sick leave for the whole or part of the leave year and/or of a carry-over period, which was the reason why he could not exercise his right to paid annual leave. For the calculation of the allowance in lieu, the worker's normal remuneration, which is that which must be maintained during the rest period corresponding to the paid annual leave,is also decisive.- CaseC-78/11Asociac�on Nacional de Grandes Empresas de Distribucion:
Article 7(1) of Directive2003/88IECof the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time must be interpreted as precluding national provisions under which a worker who becomes unfit for work during a period of paid annual leave is not entitled subsequently to the paid annual leave which coincided with the period of unfitness for work.
According to these judgments, a worker is entitled to benefit in respect of annual leave that coincides with a period of sick leave. The judgments also provide for such benefit to be carried over from one leave year to the next in a case, for example,where a worker is not in a position to take annual leave due,either because s/he is on sick leave for the whole duration of a leave year or because there is not enough time left in the leave year to take the annual leave due.
- CaseC-78/11Asociac�on Nacional de Grandes Empresas de Distribucion:
The Claimant referred to Paragraph 25 of the CJEU judgment in joined cases C-350/06 and C-520/06 which is also relevant in this regard:
- It is common ground that the purpose of the entitlement to paid annual
leave is to enable the worker to rest and to enjoy a period of relaxation and
leisure. The purpose of the entitlement to sick leave is different. It is given
to the worker so that he can recover from being ill.
- It is common ground that the purpose of the entitlement to paid annual
The Claimant stated that at the Rights Commissioner's hearing on 9thJuly 2012 the Respondent confirmed that it would comply with Rights Commissioner's Decision r-055483-wt-07IPOB and Labour Court Determination No. DWT0868 and compensate him in respect of public holidays that fell while he was on sick leave during the period adjudicated upon and thereafter. He submitted that the Respondent should provide similar confirmation regarding previous public holidays, annual leave and public holidays that coincided with administrative leaveandannualleave that coincided with sick leave.Summary of the Respondent’s PositionMs O’Hanlon on behalf of the Respondent disputed the Claimant’s case that the Respondent was in contravention of the Act.She referred to Section 19(1) of the Act which provides that the maximum statutory annual leave entitlement of a worker is four working weeks. Ms O’Hanlon contended that the Rights Commissioner/Labour Court were confined to considering the Complainant's entitlement under the Act and not any longer period provided by contract.She submitted that the periods of school closure were more than adequate to meet the entitlement to four working weeks annual leave and in that regard the Claimant was paid his full annual leave entitlement in accordance with the Act.
The Court notes that the Respondent confirmed that public holiday entitlements which accrued within the period covered by the claim will be implemented when the Claimant returns to work.
The Jurisdiction of the CourtOn the preliminary matter of the Court’s jurisdiction to hear matters which have already been adjudicated upon, the Court notified the Claimant by letter dated 12thNovember 2008 that “The Court has given its Determination in this case and it has no further function in relation to the matter”. He was advised that he could appeal the Determination to the High Court on a point of law. Therefore, the Court, having issued its Determination in this matter,isfunctus officioand therefore cannot now deal with claims relating to the period from 3rd May 2005 to 22nd May 2007.On the second matter raised by the Respondent, Section 27(2) of the Act provides that an employee must present a complaint under the Act within a period of six months from the date of the contravention to which the complaint relates. It was submitted that the contravention to which that complaint relates occurred was out of time.
Section 27(4) of the Act provides: -
- (4) A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.
The complaint in respect the period from 22nd May 2007 to 21stDecember 2011 was received by the Rights Commissioner Service on 21stDecember 2011. Section 27(4) of the Act provides that a Rights Commissioner (and the Court on appeal) cannot entertain a complaint unless it is presented to the Rights Commissioner within six months of the contravention complained of. By application of that provision only such contraventions of the Act as may have occurred on or after 22ndJune 2011 could be taken into account for the purpose of awarding redress under the Act. The Claimant seeks to rely on alleged contraventions extending over a significantly longer period.Having regard to the provisions of the Act and the fact that the Claimant had not applied to the Rights Commissioner for an extension of time pursuant to Section 27(5) of the Act, by application of the time-limit at Section 27(4), the Court can only have regard to contraventions found to have occurred between the beginning of the leave year, 1stApril 2011 and the date of claim, 21stDecember 2011. The Court finds that the claims relating to periods prior to those dates are statute barred and cannot be entertained.
Court’s Findings Regarding the Claims for Annual Leave and Public Holidays
The Claimant’s case is that European Union law requires that time spent on sick leave is to be regarded as time worked for the purpose of the accrual of annual leave entitlements. He has relied upon theStringer/SchultzCJEU decision which involved the interpretation of Article 7 of Directive 93/104/EC, on the organisation of working time, as amended.
In consequence of this decision there is now a clear conflict between the provision at Section 19 of the Act making the entitlement to four weeks under the Act dependant on a specified number of hours having been worked in the relevant leave year and the requirements of the Directive. Therefore, if the case were to be decided on the basis of Section 19 of the Act, literally construed, the claim cannot succeed.
In this case the Claimant has sought, in effect, payment in lieu of holidays and has grounded his claim in the Directive rather than in the Act. The Respondent herein is the State or an emanation of the State. Hence the doctrine of Direct Effect of European Law can have application in this case.
It is clear that the authority upon which the Claimant relies (theStringer / Schultzcases) does not support a claim for payment in lieu of holidays except in circumstances in which the employment relationship has ended. In the instant case the Claimant’s contract of employment remained extant at the time his claim was presented to the Rights Commissioner and he remains out on sick leave and therefore not in a position to take holidays, accordingly no entitlement arises at this time. Therefore, the Court finds that the Directive was not contravened in this case; consequently the Court has no jurisdiction to provide redress.
Determination
It is noted that the Respondent accepts that the Claimant has an entitlement to benefit in respect of those public holidays which occurred during the period from 22ndJune until 21stDecember 2011 i.e. the 1stAugust and 31stOctober 2011public holidays and confirmed that this entitlement will be implemented when the Claimant returns to work. The Court affirms and adopts the Respondent’s position.
For the reasons set out above the Court determines that there is no contravention of the Act and no contravention of the Directive in respect of the Claimant’s claim for annual leave and accordingly upholds the Rights Commissioner’s Decision.
Signed on behalf of the Labour Court
Caroline Jenkinson
25th April 2013______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.