Employee

Employer

Parties

Marian  Mc Mahon

 University of Limerick

Representatives

Michael O'Connell  BL

Sinead Mullins 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-00031403-001

07/10/2019

The complainant is employed as a Student Counsellor and had a dispute with the Respondent regarding current/ historical complaints relating to annual leave, public holidays, complainant pension contribution required, job Seeker Benefit Entitlements, sick pay and bereavement leave.

The Complainant submitted a complaint under the Organisation of Working Time Act 1997 on the date set out above. The Complainant commenced work with the Respondent in or around 2001 and was employed on the date of the complaint. The Complainant job title was Student Counsellor. The complaint had to main components; unpaid holiday/public holiday pay and the issue of what pension contribution the Complainant had to make for prior service pension entitlement.

An issue arose in 2016 as to the employment status of the Complainant as to whether they were self employed or employees. The details of this case relate to the employment rights by the Employer since 2000 which continues till now. The issues came to head as far back as 2015 when the Employer proposed to tender the jobs of the 4 counsellors who had been working there since 2000 and in 2016 when the Employer refused to pay €1364 in sick pay to an Employee.  The impacted Counsellors referred matters to the Department of Social Protection (DSP) who upheld their claims. The Employer were found by two organs of the State, the Revenue and the Dept of Social Protection to be employees of the Respondent and not self employed. The Complainant has therefore been denied employment rights for 18 years. The Employer has been forced to pay very significant amounts of back money in social insurance and tax to DSP and Revenue as a result yet the people at the centre of this dispute are the only people who have not been paid their rightful due. Instead for 3 years now, the Counsellors who are now close to normal retirement age have been unable inter alia to secure the proper recognition of their pension rights or their leave entitlements for 18 years. This, despite engaging with the Employer directly and via the Employers proposed mediation.  

Two people began work as Student Counsellors as employees of the Employer in September 2000.. In January 2001 there was a policy change. The Employer changed the employment arrangement from a contract of service to a contract for services.   The two employees began working under the new arrangement shortly afterwards in 2001.  Up to 2018 the counsellors worked for a 33-week academic year; the Employer varied the number of hours per week worked. The workload has varied from 8 hours per week to the full counselling load of 20 hours per week and on some occasions more than 20 hours per week.  

In February 2017 a Dept of Social Protection Deciding Officer found that the Counsellors were in fact employees since January 2001 and insurable at rate A1. This decision was upheld by the Chief Appeals Officer in April 2018. Despite this the Employer continued for some time to not implement this decision and sought advice from the Revenue. In response the Revenue also ruled that the Counsellors were in fact employees of the Employer since Jan. 2001. The Employer were in fact held to be liable to backpay the counsellors PAYE since April 2018.  Eventually in November 2018 the Employer offered permanent pro rata contracts of employment to the counsellors with a start date of 1 September 2018.  The contracts were of course finally welcome but the Employer has continued to resist full recognition of the counsellors’ employment rights from September 2000 up to April 2018.  These include rights to Annual Leave, Public Holiday Leave and Pension Entitlements, Illness and Bereavement leave and Social Welfare Benefits foregone.   

At a previous WRC Adjudication concerning two Counsellors in February 2020, the Employer offered the Counsellors a WRC mediation process to attempt to resolve these issues. It was insisted on by the Employer that in order for the mediation process to happen all 4 counsellors must join in it. COVID did intervene and the mediation process finally took place online in October 2020. The Employer also indicated that some of the delay related to difficulties for them in accessing records going back to 2000. The Counsellors were asked for and provided worked examples to the Employer via the Mediator of their annual leave and pension entitlements from the period 2000 to 2018. The counsellors’ records presented to this Hearing are more complete and include periods when the Employer again treated some of them as employees as well as contractors in 2012 and 2013, records which the Employer were unable to source.  Ultimately unfortunately no progress was made at the mediation process. In fact, despite requesting the mediation process, no offer whatsoever to address the 17 years of issues was made by the Employer and the counsellors’ claims went unanswered. This was very disappointing for a mediation process which the Employer  initiated and proposed “in order to resolve outstanding matters including pension, annual leave, public holidays, summer overpayments and retirement “. The counsellors had entered into the mediation process in good faith in the spirit of reaching an agreement. The Mediator referred the case back to Adjudication which met initially online on November 4th and agreed an in-person adjudication for December 3rd 2021 and February 28th 2022.

The Employee Representative then set out each of the areas of dispute in turn.

Annual leave and Public Holidays

From January 2001 until April 2018 each of the counsellors was paid by the Employer as a self employed contractor. Two of them had previously been employees until their status was changed by the Employer as shown above. The Dept of Social Protection ruled that all 4 had in fact been employees of the Employer since January 2001. By persisting with the self-employment construction for 17 years the Employer actively prevented the 4 counsellors from receiving their annual leave or public holiday entitlements.  Because they have been actively so prevented their case is supported by the CJEU case of King v Sash Windows (2017).   In that case, the CJEU ruled that a worker who was denied his right to annual leave as a result of being incorrectly classified as self-employed was entitled to back-dated annual leave pay. Mr King was awarded 13 years’ worth of untaken annual leave pay. This award serves to highlight that leave may be carried over indefinitely in circumstances where the employee has been denied their right to take their leave.

It has been pointed out by the Respondent that Organisation of Working time Act 1997 puts a statutory limit on an employee to claim annual leave beyond a 6-month period.  However, the CJEU has in 2019 ruled that  “Rules of national law, even constitutional provisions, cannot be allowed to undermine the unity and effectiveness of EU law … “. This ruling was the outcome in Minister for Justice and Equality and Commissioner of An Garda Síochána v Workplace Relations Commission referred by the Supreme Court to the CJEU in 2019. The CJEU found in this case that “It follows from the principle of primacy of EU law, as interpreted by the Court in the caselaw referred to in paragraphs 35 to 38 of the present judgment, that bodies called upon, within the exercise of their respective powers, to apply EU law are obliged to adopt all the measures necessary to ensure that EU law is fully effective, disapplying if need be, any national provisions or national case-law that are contrary to EU law. This means that those bodies, in order to ensure that EU law is fully effective, must neither request nor await the prior setting aside of such a provision or such case-law by legislative or other constitutional means.“  The Complainant Representative submitted that the WRC is obliged to apply EU law (in this case the law as clarified by the Court in King v Sash Windows) and that it must fulfil its mandate to do so in accordance with the Minister v WRC even where this involves a statutory limitation set down by Irish national law.

The Complainant  has previously submitted to the Employer the amounts owing to them for over 17 years of unpaid Annual Leave and Public Holidays. These have been calculated using the hours worked by the Complainant over those 17 years per the Employer records using the formula the Employer itself used to calculate their annual leave entitlement when it issued employment contracts in 2019.  The claim covering 17 years of unpaid holiday and Public Holiday pay amount to in excess of fifty thousand Euros.

Other Entitlements:

The Complainant submitted a compliant regarding how much contribution the Complainant should pay for past pension service which is to be recognised by the Respondent. It also sought to bring into the complaint issues relating to job Seeker Benefit Entitlements, sick pay and bereavement leave. Significant detail was submitted on this complaint. However, for the reason outlined in my Findings I will not expand on this complaint any further in the summary.

The claim has been taken under Section 27 of the Organisation of Working Time Act 1997. The claim relates to the alleged non-payment of statutory annual leave.The Respondent noted the claim as entered were received by the WRC on the date specified above.

The Complainant has received the relevant statutory leave that they are entitled to for the period associated with this claim, which is evidenced in this submission. The Respondent denies all claims.

In good faith the Respondent viewed the Complainant at all times as an independent contractor providing counselling services to the student population.  A subsequent SCOPE decision determined the Complainant’ status as insurable as at February 2017 under the Social Welfare Acts for all the benefits and pensions at PRSI Class A.  The original decision was issued on the 28 February 2017, the decision was appealed on 21 March 2017. An oral hearing was held on 23 January 2018 and a final decision issued on the 10 April 2018. The matter was then referred to Revenue with a decision issued on 31 October 2018.  The Deciding Officer found the Complainant were in insurable employment with effect from January 1 2001.

The Complainant is seeking an investigation into matters which are beyond both the remit and time limits of the aforementioned legislation, and it is not open to the Adjudicating Officer to consider same.    

The Complainant entered a submission to the WRC which sought adjudication on the following matters: annual leave / public holidays, pension and other benefits. Much of the submission and its claims are outside the scope of the Organisation of Working Time Act 1997. 

The Respondent submitted that the Adjudication Officer is bound by the complaint as set out under the Organisation of Working Time Act 1997 and does not have the authority to stray into matters beyond that, a fact well established in case law. The Respondent referred to the case of Killeen v Director of Public Prosecutions [1997] 3 I.R. where it was stated that the Court is bound by what jurisdiction it has and must act accordingly.  The Respondent further relied on the decision of the Supreme Court in Brannigan v the Equality Tribunal and County Louth VEC {2016] IESC 40 wherein McKechnie J stated: - “It is both a trite and historical principle of law that a creature of statute must live by the statute. Its jurisdiction is found solely within the provisions of the enabling Act. It has no inherent capacity, unlike say, say, that of a constitutional court. It is therefore bound by what has been conferred on it. It has no further competence, and it cannot create, add to or enlarge the jurisdiction so vested in it.”  The Respondent submitted that the Adjudication Officer only has jurisdiction to hear the case under the Organisation of Working Time Act 1997 and does not have jurisdiction to hear the other matters raised in the Complainant’s submission. To do so would lead any such decision open to legal challenge.  Without prejudice to the position that the complaint is time barred (as set out further below), the Adjudicating Officer can only consider statutory annual leave (4 working weeks) and public holidays. It is noted that the Complainant’s submission seeks to include additional contractual annual leave into the claim. Annual leave for statutory purposes in these cases would be limited to 8% of all hours worked to a maximum of 4 working weeks and the Adjudicating Officer has no jurisdiction to consider any alleged entitlement, contractual or otherwise, beyond that.

The Respondent submitted that the Adjudicating Officer does not have jurisdiction to hear this claim as it is time-barred.  It was accepted by the Complainant’s in their submission that they have received all statutory annual leave and public holidays entitlements with effect from 1 January 2019. 

The Respondent referred to the case of Royal Liver Assurance v Macken [2020] 4 IR 427, it was held that “under Section 27(4) of the complaints are out of time and the Rights Commissioner had no jurisdiction to entertain any complaint relating to the contravention of the applicant’s annual leave obligations and obligations in respect of public holidays owed to the respondents arising during the leave year 1999-2000” Specifically, in that case, the High Court held that the latest date of contravention to grant leave was the last day of the leave year in question.  In the context of that High Court decision and Section 41 (6) of the Workplace Relations Act cited above, the period to submit a complaint in relation to any alleged contraventions surrounding annual leave is six months from the end of the statutory leave year. The statutory leave year runs from 1 April to 31 March, in line with the High Court decision above, the Complainant are out of time as any claim for the period April 1 2018 – 31 March 2019, should have been lodged before 30 September 2019 and it was lodged after this date.

Without prejudice to the foregoing, the Acts refer to “reasonable cause” as permitting an extension of the statutory time-limits.  The tests applied by the Labour Court for such extensions of time has been well established.  The Respondent cites the case of Cementation Skanska v Carroll, DWT0338, where the Court articulated the test by stating:  “It is the Court’s view that in considering if reasonable cause exists, it is for the Complainant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd.  In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the Complainant at the material time.  The Complainant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon.  Hence there must be a causal link between the circumstances cited and the delay and the Complainant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.The length of the delay should be taken into account.  A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the complainant has a good arguable case.”  

The Court’s explanation in Cementation Skanska, drew heavily from the High Court case of O’Donnell v Dun Laoghaire Corporation [1991] ILRM 301, where Costello J held that the test is an objective one and pointed out that a Court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the institution of proceedings.  Costello J stated:  “The phrase 'good reason' is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the Court should not extend the time merely because an aggrieved plaintiff believed he/she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay”. 

In a similar Labour Court case Georgina Tully and Laura McNamee, DWT2133, 2021, the

Court found that a claim under the Act was out of time in similar circumstances to the

Complainant’s and nor was the matter of SCOPE considered a reasonable ground for extension of the time limits. “The Complainant referred her complaints under the Act to the Workplace Relations Commission on 30 September 2019. The Complainant did not perform any services on behalf of the Complainant after 13 December 2017. The relevant annual leave year ended on 31 March 2018. 

Her complaints were, therefore, referred well outside the six-month limitation period.

In her complaint form to the WRC, the Complainant stated that, “Given that prior to the decision from the SWAO I could not initiate proceedings for this complaint, I have taken the date of the ruling, 30/04/19, as the starting point for the time limit in taking this action”. 

The Complainant – as stated previously in this Determination – received a determination from SCOPE on 29 May 2018 to the effect that her employment relationship with the Respondent, for the purpose of social welfare matters, was consistent with a contract of service.  She was clearly within time at that stage to refer a complaint under the Act to the Workplace Relations Commission. There is no legal basis for the Complainant’s presumption that the limitation period commenced from the date the Social Welfare Appeals Officer issued his/her decision on the appeal of the initial SCOPE determination. “The Court finds that the complaint under the Act was referred well outside the statutory time frame for doing so. The Complainant’s appeal is, therefore, unsuccessful and the

Decision of the Adjudication Officer is upheld.”

The Respondent further relied on the decision of A Holistic Therapist AND A Holistic Therapy Business, ADJ-00024851, where the Adjudicating Officer came to the same decision.   

The Adjudicating Officer concluded that  “It is clear from this section of the Workplace Relations Act that, “for reasonable cause,” the legislation provides for an extension of the time limit for submitting a complaint from six months to 12 months......Explaining the reason why she delayed until September 2019, the complainant said that she requested a DEASP Scope investigation regarding her status on September 14th 2017. She ceased working for the respondent in December the same year. Her employment on a contract of service was confirmed by Scope on May 29th 2018, but this was appealed and the decision of the Social Welfare Appeals Officer upholding her status as an employee was issued on April 30th 2019.   In the form she submitted to the WRC, the complainant stated,

“Given that prior to the decision from the SWAO I could not initiate proceedings for this complaint, I have taken the date of the ruling, 30/04/19, as the starting point for the time limit in taking this action.”  It is my view that this does not adequately explain the cause of the delay submitting these complaints. On the form she submitted to the WRC, the complainant said that  over the years it became apparent that this title (sub-contractor) did not accurately describe the working relationship.”  It is apparent therefore, that “over the years” and, at the very latest on September 14th 2017, when she asked Scope to investigate her status, the complainant held the view that her status was that of an employee and not a contractor. At the time she submitted her request for an investigation to Scope, or, within six months after her employment terminated, there was no impediment preventing her from submitting these complaints to the WRC. When she received the positive outcome from Scope on May 29th 2018, she was still within the six-month time limit for submitting a complaint to the WRC, but she did not do so. At the hearing, the complainant argued that the first time that she had “legal standing” to initiate these complaints was on April 30th 2019, when she received the results of the respondent’s appeal of the Scope decision. I do not accept this argument. Leaving aside the fact that she delayed for a further five months before submitting the complaints; at all times during her employment and, for six months (and up to 12 months) afterwards, she was legally entitled to make a complaint to the WRC regarding her holiday entitlement. The complainant’s circumstances are reflected in the case at the High Court of The National Museum of Ireland v Minister for Social Protection [2016] IEHC 135 …..Taking my authority from this judgement, I have reached the conclusion that the complainant was not prevented from submitting a complaint to the WRC in parallel to her request for an investigation by Scope. Aside from this, I find that I have no jurisdiction to extend the time limit for adjudicating on this complaint beyond the time limit of 12 months set out at section 6(8) of the Workplace Relations Act 2015. For completeness, I wish to refer to a precedent of the Court of Justice of the European Union (CJEU) relied upon by the complainant, case C:2017/914, Conley King v the Sash Window Workshop Limited. Mr King was employed as a contractor on a commission-only basis and, for the three years that he worked for Sash Windows, he was not paid for holidays. When he retired in October 2012, his employer rejected his request for holiday pay. He brought his case to the Employment Tribunal in the UK, which concluded that he was a “worker” within the meaning of Directive 2003/88 concerning the organisation of working time, and therefore entitled to paid annual leave.......While this case is useful from the perspective of the rights of a contractor to the holidays prescribed under Directive 2003/88, it does not address the issue of the time limit.   Also, unlike the complainant here, Mr King brought his complaint about holidays directly to the Employment Tribunal in the first instance, accepting that his status as a contractor was no impediment to him doing so.”

 The SCOPE decision is limited to confirming only the Complainant’ employment status as insurable under the Social Welfare Acts for all the benefits and pensions at PRSI Class A. All other matters such as the employment status of the Complainant for the purposes of employment rights legislation, the agreement of contractual terms, matters which may have arisen out of the SCOPE decision are not within the remit of the claim. 

The Deciding Officer found the effective insurable date for the Complainant was from 1 January 2001.   An Adjudicating Officer or the Labour Court when considering a claim brought under a piece of employment rights legislation is not bound by a decision of a Deciding Officer following a SCOPE investigation, which is only made in the context of the application or otherwise of the Social Welfare Acts.  The Respondent refers to the case of Limerick Public Participation Network Operations CLG and Victoria Ward, UDD2035 where the Labour Court held it was not bound by a SCOPE decision nor did it infer a particular employment status.  The Respondent also sought to rely on the High Court decision of The National Museum of Ireland v Minister for Social Protection [2016] IEHC 135, where Mr Justice Murphy concluded that “The Organisation of Working Time Act 1997, the Protection of Employees (Fixed Term Work) Act 2003 and the Social Welfare Consolidation Act have all provided for different statutory mechanisms to resolve what are in essence, different issues arising from an employer-employee relationship. Each of those Acts provides for an ultimate appeal to the High Court on a point of law. None of the Acts provides that the decision of one decision making body is binding on the other. The legislature in its wisdom has seen fit to set up different statutory schemes to deal with different employment issues. Undoubtedly it would be far more efficient to have one body charged with the resolution of all issues relating to employment status. This however is a matter for the legislature and not the courts and as matters stand, employees enjoy rights to seek redress simultaneously from the Rights Commissioner and the Department of Social Welfare depending on the nature of their complaint.”

Regarding the Annual Leave Benefit the contractor rate is a consolidated rate reflective of a contractor’s status and obligations which wouldn’t arise for an employee including tax, insurance, administrative time, and annual leave / public holiday. The rate was determined by reference to the market rate for counselling services and is a higher hourly rate that what is received by other counsellors, including the Head of Student Counselling. 

Prior to the regularisation of the Complainant employment status they were paid an hourly rate of €62 per hour and continue to benefit from this advantageous arrangement.  If the Complainant were placed on scale, they would be in placed on a Senior Executive  Administrator scale of €51,697 - €73,501.  An FTE working 37 hours per week over 52 weeks, at the highest point of the scale, has an hourly rate of €38.20, which is substantially lower than the Complainant’s hourly rate of €62. There is a 38% hourly difference.  This clearly demonstrates that there was built in annual leave provision to cushion periods of unpaid leave. Furthermore, the arrangement between the Respondent and the Complainant provided ample opportunity for the Complainant to take annual leave. 

In his findings, the Department of Social Welfare Appeals Officer noted the following  “ At the hearing it was accepted that the four counsellors agreed among themselves as to the hours each would attend to fulfil the number of contracted hours. It was submitted by UL that each counsellor was in control of their own diary. It appears that this arrangement was facilitated over the years by good cooperation and flexibility and the common motivation was the delivery of the service with the needs of the students as priority. It was accepted that Dr. Ahern as Head of Counselling did not have the right to direct any of the counsellors as to the time of attendance. Where gaps emerged in the timetable they were filled either by co-operation and agreement or Dr. Ahern looked elsewhere for cover. Two of the counsellors are in private practice, Mr X and Ms Y, and it is fair to say that the arrangements with UL would not be comparable with the arrangements employed to run their private practice. However, I find that the arrangement with UL is not fully comparable with that of a master / servant relationship in regard to the question of control. Location and time of the work is driven by the needs of the service users but within these constraints the counsellors are afforded a degree of flexibility in relation to attendance not usually associated with employment as an employee. UL do not carry the right to direct the counsellors as to when they should attend for work, it appears the counsellors were flexible and mutually co-operative over the years and this allowed for the provision of the service as envisaged under the contract. In summary I find UL did not exercise a level of control over the work of the counsellors consistent with the level of control and direction normally associated with a master servant relationship.”   Therefore, it is quite clear by the Complainant’s own admissions as set out in the Appeals Officers' decision that the Complainant had great flexibility within their roles, thereby allowing them to take annual leave as and when they wanted, something the Respondent had no control over.  In addition, as the counselling service was only provided during term time, the Complainant had extensive periods where they could take annual leave.  The consolidated rate, currently 38% higher than the scale rate per hour, reflected a cost for annual leave and therefore these periods can be deemed to be periods of paid leave.  It is also the case that the Complainant was afforded the opportunity to take leave while they were contractors and they were paid for this leave. Consequently, it was the position of the Respondent that the Complainant can’t now claim for periods of annual leave as it is quite evident that they availed of the leave already and were in fact paid for the leave through the consolidated rate of pay.  Therefore, it was the case that the Complainant was afforded the opportunity to take leave while they were contractors and were paid for this leave. 

Without prejudice to the matter of time limits, the within case differs to that of the ECJ decision in Conley King v the Sash Window Workshop Limited, C:2017/914 as it can evidenced that the Complainant’s availed of periods of annual leave and that those periods were paid by virtue of the consolidated rate. The ECJ in King v Sash Window Workshop Limited emphasised the need for an employer to provide “adequate facility … for a worker to exercise the right to paid annual leave”. The Respondent submits that the arrangement between it and the Complainant whereby the Complainant’ hourly rate of pay was 38% more than employees of the Respondent and the Complainant were facilitated to work flexibly and largely dictate their own working hours cannot be said to be one where Complainant were not provided with adequate facility to exercise a right to paid annual leave. For these reasons, the Respondent submitted that the aforementioned ECJ decision is not applicable to the present case before the Adjudicating Officer. 

Based on the above it was the position of the Respondent that the Adjudicating Officer is limited by jurisdiction in that matters only under the Organisation of Working Time Act 1997 can be considered. In any case, the claims as presented are out of time, there is no reasonable cause to extend and that the SCOPE decision is not binding on the Adjudicating officer. The Complainant availed of extensive periods of annual leave, had control of when they worked and when they took such leave which was paid for by means of the consolidated rate.   

The Complaint

The Complainant alleges that the Respondent has not paid both annual leave and public holidays for the duration of their employment prior to being recognised as an employee. The Complainant also sought that the pension contribution sought by the Respondent from the Complainant for the inclusion of prior service be set aside or adjudicated upon. The Complainant asked the Adjudicator to set aside this limitation and to retrospectively, for around 17 years, adjudicate on the past service issues. The total annual leave and public holiday underpayment claimed is greater than fifty thousand Euros  and the pension contribution sought by the Respondent is also quite significant.

Statutory Time Limits

The Organisation of Working Time Act 1977 (Sec 27) (and as amended by the Workplace Relations Commission Act 2015) states the following: “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. Notwithstanding subsection (4), a rights commissioner may entertain a complaint under this section presented to him or her after the expiration of the period referred to in subsection (4) (but not later than 12 months after such expiration) if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause.”

The Complainants grounds for setting aside the statutory time limits

The Complainants main case for the inclusion of past service revolved around the application of the decision in  ECJ decision in Conley King v the Sash Window Workshop Limited, C:2017/914 which concluded “Article 7 of Directive 2003/88 must be interpreted as precluding national provisions or practices that prevent a worker from carrying over and, where appropriate, accumulating, until termination of his employment relationship, paid annual leave rights not exercised in respect of several consecutive reference periods because his employer refused to remunerate that leave. “.

The Respondent submitted  that it complied fully with sections 19 and 20 of the Organisation of Working Time Act 1997 and with the provisions of the Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997 and therefore had no case to answer due to the statutory time limits of 6 months or 12 months with reasonable cause and the admission by the Complainant that they have received all their entitlements during both of the above periods. In the Respondent’s submission, they stated that the authorities cited by the Complainant does not support the retrospective element of her claim. According to the Respondent, the decision in Sash Windows does not override national law as European nations were free to set their own timeframes under the directive.

As stated previously, the Complainant referred her complaint under the Act to the Workplace Relations Commission on the above date. The claim related to the calculation of payment for annual leave/public holidays and to the granting of annual leave/public holidays. The maximum

cognisable period allowing reasonable cause under the Act is 12 months prior to the claim being submitted. The Complainant wishes to extend this time frame back to the date they commenced work with the Respondent.

The Complainant requested that I also adjudicate on an issue related to pension payments due for past service. 

Legal situation

The complaint before the Adjudicator is under the Organisation of Working Time Act 1997. The Act provides, inter alia, for an entitlement to a minimum period of annual paid leave, calculated in accordance with section 19 of the Act. The Complainant’s statutory annual leave entitlement is twenty days.

The issue of whether Sash windows applies to Irish law was dealt with by the Labour Court in DWT2228 Carlow County Council v Eamonn Coughlan. While the circumstances of that case were slightly different to this case in that it related to the inclusion of various premium payments in the calculation of pay for leave the fundamental issue is the same in that it related to allowing the retrospection of time for 21 years to be coved by the Organisation of Working Time Act 1997.

I will now quote the relevant parts of the Labour Court decision;

“ The Complainant alleges that Carlow County Council (‘the Respondent’) has undercalculated his annual leave payment for the duration of his employment with it in so far as the Respondent has failed to include regular and rostered overtime and various allowances when calculating his holiday pay. He is seeking retrospective payment of the shortfall back to the date of commencement of employment in respect of all statutory and contractual annual leave availed of by him and compensation for the alleged breaches of the Act in this regard. The total annual leave underpayment is €678.32. Based on the jurisprudence of the Court of Justice of the European Union, right accrues from the commencement of employment. The complainant commenced his employment on the 6th of June 1999 and claims 21.5 years. Based on the evidence the underpayment for the 4 weeks of statutory annual leave is 21.5 years x €678.32 = €14,583.88.”

The Complainant relies on the decision of the Court of Justice of the European Union (‘the CJEU’) inLock v British Gas Trading Limited(2014) ICR 813 in support of his submission that overtime payments and allowances are reckonable for the purposes of calculating annual leave pay. Furthermore, he submits that – having regard to the decision of the Court of Appeal in Northern Ireland inChief Constable of the Police Service of Northern Ireland & Anor v Agnew(2019) NICA 32 (‘Agnew’) and the judgment of the CJEU inKing v Sash Window Workshop Limited(Case C-214/16) (‘Sash Windows’) – he is entitled to seek retrospection of any underpayments in respect of annual leave retrospective to the date his employment with the Respondent commenced in June 1999.

The Respondent submits that it complies fully with sections 19 and 20 of the Organisation of Working Time Act 1997 and with the provisions of the Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997.

In the Respondent’s submission, none of the authorities cited by the Complainant support the retrospective element of his claim. According to the Respondent, Agnew is primarily concerned with the application of time limits as provided for in the relevant Regulations in place in Northern Ireland and is, in any event, under appeal to the UK Supreme Court. The Respondent also addresses the decision in Sash Windows. It submits that that case is distinguishable on the facts from the within case as the Plaintiff, Mr King, had been denied any opportunity to avail himself of paid annual leave throughout his period of employment because he had been wrongly characterised as an independent contractor and commenced his litigation to seek payment in lieu of untaken annual leave on the cessation of his employment.

As stated previously, the Complainant referred his complaint under the Act to the Workplace Relations Commission on 8 March 2021. As his claim relates to the calculation of payment for annual leave (as opposed to the granting of annual leave), in the Court’s judgment, the cognisable period covered by the claim – having regard to section 41(6) of the Workplace Relations Act 2015 - is the period 9 September 2020 to 8 March 2021. It is also the Court’s judgment that none of the cases cited by the Complainant are authority for the Court assuming, on the facts of the within appeal, an enlarged temporal jurisdiction over and above that specified by the Oireachtas. For the avoidance of doubt, the Court fully accepts the Respondent’s submission that the judgments in Sash Windows and in Agnew, respectively, for the reasons stated, do not support the Complainant’s submission that this Court – were it to uphold the substance of his claim that overtime payment should be included in the calculation of payment for annual leave – can award redress retrospective to the date of commencement of his employment in 1999. (Bold added by the AO).

The Organisation of Working Time Act 1997 was enacted to give effect to Directive 93/104/EC of 23 November 1993 of the Council of the European Communities which delegated to the Member States of the European Union the right to determine all aspects of holiday pay, including its calculation. The Directive left it to national legislation to determine the conditions of entitlement to, and granting of, an employee’s paid annual leave, including the determination of the basis upon which payment is calculated for such periods of leave and the level of such payment.

For the reasons set out in the body of this Determination, the Complainant’s claim for retrospective payment of alleged underpayment of annual leave back to the date of commencement of employment fails. The Court’s judgment is that its jurisdiction is limited temporally to the cognisable period referred to earlier and is confined also to considering the calculation of payment for statutory annual leave only.

The Court so determines.” End of Quote

Findings

In evidence the Complainant confirmed that they were an employee of the Respondent for the 12 months prior to the submission of their complaint. They also confirmed that they had received all public holiday /annual entitlements due for that period.

The complainant stated they commenced her employment around 2000. The Parties are ad idemi generally in relation to the material facts as to how and when the Complainant transferred from being self-employed to being an employee, however the Respondent reserved their position regarding the status of past service.  The Complainant relied on the judgment of the CJEU inKing v Sash Window Workshop Limited(Case C-214/16) (‘Sash Windows’) – that she is entitled to seek retrospection of any underpayments in respect of annual leave  and public holidays retrospective to the date their employment with the Respondent commenced. I  find that based on the case law precedent that  I am governed by the existing legislation and the only time scale option legally available to me to adjudicate upon is a maximum of 12 months prior to the date of the submission of the complaint to the WRC and as the Complainant confirmed she had received all legal entitlements to annual leave and public holidays during this period, I find that I have no valid complaint to address under the Organisation of Working Time Act 1997.

The Organisation of Working Time Act 1977 does not cover the issue of pension payments due and while I have an understating of the Complainants frustration of not getting to resolve the fundamental issue of pension contribution I have no jurisdiction to issue a Decision on that matter under the Organisation of Working Time Act 1997. For the sake of completeness, the issue of pension payments was not specifically included in the Complainants complaint form to the WRC so could be excluded on that ground anyway.

I decide that the complaint is not well founded.

Unpaid Leave