FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : WATERFORD CITY COUNCIL - AND - MR STEPHEN O'DONOGHUE (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Ms Ni Mhurchu |
1. Appeal of Rights Commissioner's Decision r-061846-wt-08/MMG
BACKGROUND:
2. This case concerns an appeal by the Union of Rights Commissioner's Decision r-061846-wt-08/MMG. The issue concerns a worker employed by Waterford City
Council who claims that he did not receive his proper Annual Leave entitlements under the Organisation of Working Time Act, 1997.
Management's position is that it changed the leave year from April - March to January- December with effect from the 1st January, 2008. It claims that in the year in question it applied pro rata annual leave entitlements, which did not reduce any employees annual leave entitlements.
The dispute was referred to a Rights Commissioner for investigation. His Decision issued on 15th December 2008 and did not find in favour of the Complainant on the basis that Management had, in co-operation with its employees and their representatives, introduced a standardised methodology of holidays and holiday payment and that the worker had not presented a valid claim in relation to his contention that he had not received his full entitlement during the leave year in question.
On 19th December 2008, the worker appealed the Rights Commissioner's Decision in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 23rd June, 2009.
UNION'S ARGUMENTS:
3 1 The worker had worked the required number of hours (1,365) in the period from April, 2007 to December, 2007. On that basis he had accrued an entitlement to four weeks Annual Leave for that period.
COMPANY'S ARGUMENTS:
4 1 Management changed the leave year for administrative purposes and applied pro rata Annual Leave for the year in which the change occurred. This did not negatively affect any workers entitlements to Annual Leave.
DETERMINATION:
This dispute arose in the following circumstances: -
In November 2007 the Respondent introduced a change in its administrative leave year from the statutory leave year (1st April to 31st March) to the calendar year (1st January to 31st December). To facilitate this change the Respondent informed affected staff that in respect of the period 1st April 2007 to 31st December 2007 staff would be allocated 17.25 days annual leave. This represented 75% of the full allocation of 23 days per year. Thereafter staff would be allocated 23 days leave on 1st January each year. The circular introducing the new arrangements expressly stated that affected employees would not lose any part of their contractual entitlement of leave by reason of the changeover. It was further stated that staff who had not availed of at least 17.5 days leave in the period up to 31st December 2007 would carry forward the residue into the following year.
The Union takes the view that the Respondent had introduced a “nine month leave year”. It contends that the Claimant in this case worked the requisite 1,365 hours in that “leave year” and is, in accordance with s.19(1) of the Organisation of Working Time Act 1997, entitled to his full annual entitlement of 23 days in respect of this period.
Conclusions of the Court
This claim has been brought before the Court in reliance on the provision of s. 19 of the Act of 1997. Accordingly the Court must decide the matter by the application of the provisions of that statute.
Section 19 of the Act provides: -
- 19.—(1) 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):
Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater. - ( 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),
As was correctly pointed out by the Union in its submission to the Court the term “leave year” is defined by s.2 of the Act as meaning “a year beginning on any 1st day of April”. However it should be noted that this definition refers to a “year”. As a matter of plain language that means a period of 12 months. The period 1st April to 31st December is a period of nine months and is not capable of being regarded as a year for the purposes of the Act or otherwise.
The purpose of the Act is to provide employees with an entitlement to 20 days annual leave per year. Section 20 of the Act provides, inter alia, that the leave must be granted within the leave year as defined by s.2 or within six months thereafter where the employee consents to its deferral. Section 19(1) provides that the full statutory entitlement accrues to an employee in respect of a leave year in which he or she works at least 1,365 hours. But the entitlement still relates to each year of employment and not to a shorter period. Thus, the effect of s.19(1)(a) is that if an employee is employed for a full year but is absent from work during the year, his or her full entitlement still accrues if they worked the requisite hours during the year.
The only leave year which is cognisable for the purpose of determining if an employee received his or her statutory entitlement is that prescribed by the Act itself, that is to say a year starting on 1st April and ending on 31st March the following year. While different arrangements may be put in place for administrative purposes, in determining if a contravention of the Act occurred that Court can only have regard to the leave
allocated to an employees in the statutory period. Consequently the Claimant can only succeed in the present claim if it is shown that in the period 1st April 2007 to 31st march 2008 he was allocated less that 20 days annual leave.
In the instant case the change in the “leave year” is an administrative arrangement. Under the arrangement an employees affected will still accrue an entitlement to 20 days annual leave in the 12 month period 1st April and 31st March, or indeed any other 12 Month period. In accordance with s. 20(1) of the Act the statutory leave must be granted within the leave year, as defined, or within six months thereafter where the employee so consents.
There is another aspect of this case which should be addressed for the sake of completeness. The Union presented the within claim to the Rights Commissioner in January 2008. It could only relate to the leave year 2007 -2008. It was decided by the High Court inRoyal Liver Assurance Limited v Graham Macken, Five Others and SIPTU, High Court, Unreported, Lavan J. 15th November 2002, that where an employee is allocated less that his or her statutory entitlement of annual leave in a leave year a contravention of the Act occurs at the end of the leave year to which it relates. Thus, a cause of action in respect of the leave year 2007 – 2008 could only have accrued on 31st March 2008. The Court cannot see how a valid complaint could be referred to a Rights Commissioner in January 2008 in respect of an alleged contravention of the Act which could only have crystallised two months later.
In any event there is no evidence to show that a contravention of the Act occurred in consequence of the new administrative arrangement. Consequently the Court must hold that the Union’s complaint is not well-founded.
Accordingly the appeal is disallowed and the decision of the Rights Commissioner is affirmed.
Signed on behalf of the Labour Court
Kevin Duffy
14th July 2009______________________
AHChairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.