FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : COUNTY LIMERICK VEC (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - JOHN COTTER DIVISION : Chairman: Mr Duffy Employer Member: Mr Grier Worker Member: Mr O'Neill |
1. Appealing against a Rights Commissioner's Decision R-055483-Wt-07/POB.
BACKGROUND:
2. County Limerick VEC is a Statutory Education Authority established under the 1930 VEC Act with responsibility for the provision of education and related services in County Limerick.
The Claimant concerned commenced employment with County Limerick VEC as a teacher of English and General Subjects (including History) in September 1982.
On the 3rd May 2005 and up to the 22nd May 2007 the Worker was placed on Administrative Leave. From the 23rd May 2007 and up to date the Claimant is on Sick Leave.
In August 2007 the Claimant submitted a claim for the restoration of his Annual Leave and Public Holiday entitlements for the period he was on Administrative and Sick Leave to the Rights Commissioner for investigation. The Rights Commissioner's Decision issued on the 15th May 2008 in which he found that the Claimant was entitled to benefit in respect of Public Holidays which occurred while he was on sick leave.
The Claimant appealed the Rights Commissioner's Decision to the Labour Court on the 25th June, 2008, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. The Court heard the appeal on the 15th October, 2008.
CLAIMANT'S ARGUMENTS:
3. 1. The Claimant maintains that the Rights Commissioner erred in ignoring the period of forced 'administrative leave' in arriving at his decision.
2. The Claimant also maintains that the Rights Commissioner is contradictory in his decision by reference to public holidays and annual leave, whereby one is granted and yet the other is not in similar circumstances.
3.The Claimant contends that the Rights Commissioner accepts that the term 'administrative leave' is not defined yet purported to make a decision by reference to a non-existing definition.
MANAGEMENT'S ARGUMENTS:
4. 1. Management maintains that the Claimant availed of his annual leave entitlement in 2005, 2006 and 2007 and was paid his full annual leave entitlement in accordance with the Organisation of Working Time Act, 1997.
2. Management have undertaken to implement the Rights Commissioner's decision regarding Public Holiday entitlements upon the return of the Claimant to work.
3. Management maintains that 'Administrative leave' is effectively authorised paid leave by the employer but is not considered protective leave.The benefit of 'Administrative leave' to the Claimant was that he remained on full pay and retained all his entitlements which fell during this period, equivalent to all other permanent wholetime teachers employed by County Limerick VEC.
DETERMINATION:
The Claimant was placed on administrative leave during the period May 2005 and May 2007. The Claimant now contends that he should receive the annual leave accruing in respect of that period. He submitted that his statutory entitlement cannot run concurrently with the administrative leave.
For the reasons which follow, the Court cannot accept that submission. The term "administrative leave" is not a term of art and is not formally defined. It is an expression used to describe a state of affairs in which a worker is relieved of the obligation to attend at his or her place of work, or to perform work for his or her employer, with all other aspect of the contract of employment being unaffected. That is the arrangement which was applied to the Claimant in this case.
Under the Claimant's contract of employment his annual leave was to be taken during the months when the school is closed. While the Claimant was on administrative leave that situation continued to apply. Clearly he could not have been required to come back to work during the holiday period nor would there have been any necessity to request or require him to refrain from attending at work or undertaking teaching duties during such periods. Accordingly, the Court is satisfied that during those periods the Claimant was, in fact on annual leave in accordance with this contract.
In these circumstances, the Court is satisfied that there was no contravention of Section 19 or 20 of the Act in relation to the Claimant.
It is noted that the Rights Commissioner decided that the Claimant was entitled to benefit in respect of Public Holidays which occurred while he was on sick leave. This finding was accepted by the Respondent and the Court was told that it will be implemented when the Claimant returns to work. Accordingly, this finding of the Rights Commissioner is affirmed and adopted by the Court.
In light of its findings in relation to the claims which relate to the application of Section 19 and 20 of the Act it is unnecessary to deal with questions regarding the application of the time-limit prescribed by Section 27 of the Act.
For all of the above reasons the Court determines that the appeal herein is disallowed and the Decision of the Rights Commissioner is affirmed.
Signed on behalf of the Labour Court
Kevin Duffy
29th October, 2008.______________________
MG.Chairman
NOTE
Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.