FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 28 (1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : SHEELIN MUSHROOMS LIMITED (REPRESENTED BY PENINSULA BUSINESS SERVICES (IRELAND) LIMITED) - AND - GUNTA KRESLINA (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Mr Foley Employer Member: Mr Marie Worker Member: Ms O'Donnell |
1. Appeal of Adjudication Officer Decision No. R-159490-WT-15/SR
BACKGROUND:
2. An Adjudication Officer hearing took place on the 20 January 2016, and a Decision was issued on the 19 May 2016. The Employee appealed the Decision of the Adjudication Officer to the Labour Court on the 27 May 2016, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 14 July 2016.The following is the Determination of the Court:
DETERMINATION:
This case comes before the Court by way of an appeal against the decision of an Adjudication Officer.
The Appellant (Gunta Kreslina) had complained that the Respondent (Sheelin Mushrooms Limited) had failed to accrue annual leave entitlement to her in respect of specified periods of sick leave and that the Respondent’s failure to accrue such entitlement was in breach of the Organisation of Working Time Act 1997 (the Act).
The Adjudication Officer declared that ‘the complaint is not well founded, is rejected and is not upheld’.
The Appellant commenced employment with the Respondent on 27thMarch 2003.
The Case
The Appellant clarified to the Court that no claim is before the Court contending that the Respondent was in breach of the Act because it did not apply Section 86(1) of the Workplace Relations Act 2015 (the Act of 2015) prior to its commencement on 1stAugust 2015. The Appellant’s representative confirmed to the Court that no contention for retrospective application of Section 86(1) of the Act of 2015 was before the Court.
The Appellant’s representative confirmed to the Court that the complaint related to the failure of the Respondent to interpret the Act in conformity with European Jurisprudence and in particular the decision of the CJEU in the joined cases ofGerhard Schulz-Hoff v Deutsche Rentenversicherung Bund[C-350/06] andStringer and Others v Her Majesty’s Revenue and Customs[C-520/06]. The effect of such an interpretation of the Act would, in the view of the Appellant, have been to accrue annual leave entitlement to the Appellant during periods of sick leave. The periods of sick leave contended by the Appellant to be relevant to the within complaint were from 20thOctober 2014 until 31stMarch 2015 and from 1stApril 2015 to 14thJuly 2015. The Appellant contended that this failure by the Respondent represented a breach of the Act. The Appellant made no complaint that the Respondent breached the Act as enacted.
Discussion and Conclusions
The Appellant’s representative drew the Court’s attention to its own decision in the case of Seclusion Properties and O’Donovan (DWT14114). In that case this Court concluded that
- “It is clear that the obligation on domestic courts and tribunals to interpret national law in conformity with a Directive applies ‘as far as possible’. That is to say, it cannot serve as a basis for an interpretation of national law contra legem. As was pointed out by the CJEU inDominguez v Centre Informatique du Centre Ouest Atlantique,a conforming interpretation can only be arrived at by taking the whole body of domestic law into consideration and applying the interpretative methods recognised by domestic law, with a view to ensuring that the Directive in question is fully effective and that an outcome consistent with the objective pursued by the Directive is achieved.
In this case the submissions received by the Court do not identify what, if any, interpretative methods known to Irish law could be employed by the Court so as to produce the result contended for by the Claimant and avoid a construction contra legem. Nor do the submissions identify the appropriate test to delineate the point of departure between a permissible conforming interpretation and an impermissible contra legem interpretation.”
Determination
The Court, for the reason stated above, affirms the decision of the Adjudication Officer and the Appeal fails.
Signed on behalf of the Labour Court
Kevin Foley
LS______________________
26 July 2016Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.