FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : COUNTY CORK VOCATIONAL EDUCATION COMMITTEE REPRESENTED BY PEARSE SREENAN B.L., INSTRUCTED BY MICHAEL POWELL SOLICITORS - AND - HUGH RANCE DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal of a Rights Commissioner's Decision R-094959-WT-10/JOC.
BACKGROUND:
2. The case before the Court concerns an appeal of a Rights Commissioner's Decision R-094959-WT-10/JOC. The dispute relates specifically to the Worker's claim that during the course of his current employment as a Teacher with County Cork Vocational Education Committee (VEC), his Employer has on multiple occasions breached several Sections of the Organisation of Working Time Act, 1997, and he has not received his proper annual leave and public holiday pay entitlements as provided for under the Act. The Employer rejects the Worker's claim arguing that the Worker has at all times been appropriately remunerated in terms of annual leave and holiday pay entitlements. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 17th February, 2011 the Rights Commissioner issued his decision as follows:
"I find the Claimant's case to be well-founded and I award him €1,000 in compensation".
The Worker and the Employer appealed the Rights Commissioner's Decision to the Labour Court in accordance with section 28(1)of the Organisation of Working Time Act, 1997. The Court heard the appeal on the 1st June, 2011.A subsequent hearing was held on 30th May, 2012. The following is the Determination of the Court:
DETERMINATION:
Mr Hugh Rance brought a complaint before a Rights Commissioner pursuant to the Organisation of Working Time Act 1997 (the Act) alleging breaches by his employer County Cork VEC of Sections 19, 20 and 21. The Rights Commissioner upheld the complaints andawarded the sum of €1,000. Both Mr. Rance and County CorkVEC appealed the Decision of the Rights Commissioner.
For ease of reference the parties are referred to as they were at first instance. Hence Mr. Rance is referred to as "the Complainant" and County Cork VEC is referred to as "the Respondent".
Summary of the Complainant's Case
The Complainant sought arrears of annual leave and public holiday due from December 2008 to June 2009 and an award of compensation for continuous breaches of the Act back to 2004. Furthermore, he sought an award of compensation for the
detrimental effects caused by the Respondent's breaching of the Act. During the period for which arrears are claimed he worked 22 hours per week and earned €946 gross per week.
In his submission to the Court, the Complainant referred to Labour Court Determination FTD0818 dated 1stDecember 2008 between the Respondent and the Complainant where the Court found that the Respondent was in breach of Section 6 of the Protection of Employees (Fixed-Term Work) Act 2003 by reason of its failure,inter alia,to pay holiday pay in comparison to named comparable permanent employees. The Court held that"the Complainant must be entitled to recover his arrears of holiday pay".
In that Determination the Court noted that the Complainant had an entitlement only to recover monies for the breach of Section 6 in respect of the six-month period prior to the making of his complaint and accordingly awarded the Complainant the sum of €9000 in compensation to include arrears in respect of all breaches of Section 6 of the Act, i.e.travel expenses, incremental credit, remuneration and holiday pay.Inaddition, the Court determined that the Complainant was entitled to a contract of indefinite duration by operation of law from 26th August 2006 on the same terms and conditions as comparable permanent employees together with all applicable arrears of pay and pension to be paid from that date.
The Complainant submitted that following Labour Court Determination FTD0818 he was issued with a contract of indefinite duration on 8thFebruary 2009 (effective back to 26thAugust 2006) however, the Respondent continued to lay him off during the school holidays. He was laid off and not paid holiday pay during the Christmas holiday period in December 2008 to January 2009, the mid-term holiday in February 2009 and the Easter holidays in April 2009. He was then laid off again at the beginning of the summer holidays on 29thMay 2009.
Summary of the Respondent's Case
Mr Pearse Sreenan, B.L., instructed by Michael Powell, Solicitors, on behalf of the Respondent submitted that all or part of the Complainant's complaints were statute-barred.
Mr Sreenan submitted that the Respondent complied with its legal obligations under the Act during the relevant time period. Furthermore, he submitted that the Complainant made a number of arguments for an extension of the time limits in his original complaint to the Rights Commissioner including that the time limit should be increased to 6 years and citing cases such asMarshall v SouthamptonandBarth v Bundesministeriumin support of his arguments.
Mr Sreenan submitted that this Court has no jurisdiction nor precedent to rely directly on EU law while ignoring the legislative provisions in Irish law which implement EU law. Moreover, he submitted that the cases cited were not relevant to the Complainant's case. Those cases essentially dealt with actions under contract law. Actions under the Organisation of Working Time Act are not "similar domestic actions" as specified by those cases. Mr Sreenan submitted that it was more appropriate to compare procedural time limits set out in the Act to similar pieces of employment legislation such as the Unfair Dismissals Act, the Protection of Employees (Fixed-Term Work) Act, etc. and that the Rights Commissioner's Decision not to extend the time limits was correct.
In respect of the Complainant’s complaint under Section 19 of the Act, Mr Sreenan noted that the Complainant had included the entirety of the school holiday period for the purposes of making his complaint whereas the Section 19 provides that the entitlement to annual leave is as follows:-
- "4 working weeks in a leave year in which he or she works at least 1365hours' (unless it is a leave year in which he or she changes employment),
One-third of a working week for each month in the leave year in which he or she works at least 117hours, or 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 ease 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"
Therefore, Mr Sreenan submitted that the Complainant must ground his complaint on the above provisions and it was incorrect to include all school holiday periods in his complaint. The Complainant was paid his normal weekly pay for June, July and August 2009 (payslips were supplied to the Court), therefore, Mr Sreenan submitted that the Complainant has been paid considerably over and above the legal minimum holiday pay as provided for under Section 19 of the Act.
Furthermore, he submitted that the Complainant's contract was amended in September 2009 as per FTD0818 to pay him all year-round and he was paid for further holiday periods of approximately 3 weeks before the end of that year. He is now in receipt of paid holidays far in excess of the legal minimum.
Mr Sreenan further submitted that the Rights Commissioner erred in law in awarding the Complainant compensation in respect of his prior rate of pay which was inclusive of holiday pay as the Respondent discharged its legal obligations to the Complainant within the relevant period and therefore did not utilise this rate in breach of the Act.
In respect of his claim under Section 21 of the Act for Public Holiday entitlements, 4 public holidays occurred – 17thMarch, 13thApril, 4thMay and 1stJune 2009. Mr Sreenan stated that teachers do not work on public holidays and are given a paid day off. He stated that the Complainant was paid for each of the four public holidays in question (details were supplied to the Court).
Extension of Time
The Complainant referred a complaint before a Rights Commissioner pursuant to the Act on 29thJuly 2009. The Complainant sought an extension of time within which to bring the complaint pursuant to Section 27(5) of the Act.He contended that the Respondent was in continuous breach of the Act throughout all periods of annual leave from 2004 until June 2009. He said that he had a legitimate expectation that the Respondent would pay holiday pay during annual leave as per Determination FTD0818. He said that when the Respondent did not comply with FTD0818 he sought enforcement through the Circuit Court.
He submitted that as FTD0818 did not take account of holiday pay nor public holiday pay for the period September 2004 up to 25thAugust 2006, the Court should allow an extension of time to bring the complaint sufficient to encompass all alleged breaches of the Act back to September 2004. He contended that as EU Directive 93/104/EC (the Directive whose provisions the Act implements) does not prescribe any time limit then the Court should be free to grant such an extension.
The Complainant cited the CJEU caseVon Colson&Kamann v Land Nordrhein -Westfalen[1984] ECR 1891 wherein the CJEU held that if a right grounded in European law is infringed the judicial redress provided should not only compensate for economic loss sustained but must provide a real deterrent against future infractions. He submitted that unless the extension sought was granted then any award of compensation granted would not be adequate in relation to the damage sustained.
The Complainant also citedBarth v Bundesministerium fur Wissenschaft and Forschung C-542/08,a decision of the CJEU from April 2010 in which the Court noted that it was not the purpose of EU law to regulate the application of limitation periods which constitute procedural conditions intended to ensure that a right derived by an individual from EU law is safeguarded. The Court stated in Paragraph 17 of that judgement that any time limits for the bringing of complaints under implementing domestic legislation fall within the domestic law of each member state but those limitations must meet certain conditions:
- "First, that the rule is not less favourable than those governing similar domestic actions (principle of equivalence) and, second, that it does not render in practice impossible or excessively difficult the exercise of rights conferred by European Union law (principle of effectiveness). "
The Complainant contended that the time limit set out in the Act may be set aside, subject to the principle ofequivalence,as contract law in Ireland and the Statute of Limitations provide that a period of up to 6 years may be taken into account from the time of a breach of an Act or a contract when recovering arrears, awarding damages or compensation.
The Court’s Findings
The Complainant has advanced a submission that the Court should ignore the limitation periods set out in the Act, and should instead consider the alleged breaches of the Act in the period up to six years prior to making the complaint. The Directive is silent on the question of limitation periods to be set out in national legislation implementing the Directive.
The Court is of the view that the limitation periods set out in the Act are clear and precise and it is confined to those limitation periods. The Court is strengthened in this view by the fact that almost all domestic legislation affecting employment rights and whether implementing a Directive or not carries similar limitation periods.
The only further question in relation to time limits for the Court to consider is whether the time limit for bringing the complaint should be extended under the provisions of Section 27(5) of the Act.
Section 27(4) of the Act allows for complaints to be presented within 6 months of the alleged contravention of the Act and Section 27(5) provides for an extension of that limit by a further 12 months where reasonable cause has been shown for the Complainant's failure to present the complaint within that time limit. It is well settled that it is for a Complainant seeking an extension of time to both explain the delay and put forward a reasonable excuse for the delay.
The test for deciding if reasonable cause is shown for the purpose of the Act was considered by the Court inCementation Skanska (Formerly Kvaerner Cementation v CarrollLabour Court Determination WTC0338 (October 28, 2003). Here the Court said:-
- "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 claimant'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 thosecircumstances not been present he would have initiated the claim in time."
The Court has applied the test formulated inCementation Skanska (Formerly Kvaerner Cementation) v CarrollDWT0338 to the Complainant's explanation for the delay in instituting the within complaint. In considering his application, the Court should ask itself if a reasonably diligent person, having the same state of knowledge of the material facts as the Complainant, would have delayed in pursuing a claim under the Act for the reasons advanced by him. Having regard to all the circumstances of the case the Court has concluded that it must answer that question in the negative.
Accordingly, the Court cannot accept that the grounds advanced by the Complainant for not having presented his claim before 29th July 2009 either explain or excuse the delay. Accordingly the Court cannot accept that reasonable cause has been shown to justify an extension of the statutory time limit.
The Court must next consider what period of time is encompassed in relation to the alleged breaches.
Section 20(1) provides that, subject to certain conditions, it is for the employer to determine the time at which annual leave is granted to an employee provided the leave is granted within the leave year to which it relates or, with the consent of the employee, within the six months thereafter. A leave year is defined in Section 2 (1) as the year beginning on the first day of April.
It is clear that the employer's duty to grant annual leave can be lawfully performed at any time during the leave year to which it relates or, with the consent of the employee, six months thereafter. It follows that an infringement of Section 19 of the Act cannot be held to have occurred until that timescale has expired without the paid leave having been granted.
It follows that, as the six-month period referred to in the complaint under Section 27(4) of the Act straddles two different leave years (1stApril 2008 – 31stMarch 2009 and 1stApril 2009 – 31stMarch 2010), the cognisable period for the purpose of the within claim in respect of annual leave is from 1stApril 2008 to 29thJuly 2009. However, as the Complainant was on a career break until 1stSeptember 2008 then the cognisable period for annual leave purposes runs from 1st September 2008 until 29th July 2009.
The cognisable period for the purpose of the within claim in respect of public holidays is from 30thJanuary 2009 until 29thJuly 2009.
Alleged Breach of Section19:Failure To Grant Annual Leave
The complaints herein relate to the Respondent's alleged failure to provide the Complainant with paid annual leave in accordance with Section 19 of the Act. The calculation of pay for annual leave and public holidays is governed by the Organisation of Working Time (Determination of Pay) Regulations 1997, S.I. 475 of 1997 (the Regulations). Regulation 3(2) prescribes the formula for the calculation of the rate payable in respect of annual leave in the case of an employee whose pay is calculated by reference to a fixed hourly rate.
The Complainant in his submission to the Court stated that"the Respondent then without notice paid the Appellant holiday pay during annual leave at his normal weekly rate of pay in July and August 2009".
Claim in respect of the period 1stSeptember 2008 until 31stMarch 2009
In accordance with Section 19 of the Act, during the 7-month period 1st September 2008 until 31st March 2009, the Complainant accrued an entitlement to almost 52 hours annual leave. No details have been supplied to demonstrate that the Complainant was provided with his statutory entitlement to annual leave during this period of time. It was not disputed that during that period the Complainant was paid a pay rate inclusive of holiday pay.
The Court has previously held that where a Complainant received statutory periods of leave but did not receive payment in accordance with the provisions of Section 20 of the Act, then he/she is entitled to seek redress under the Act. Article 7 of the Directive93/104IECon The Organisation of Working Time "concerning certain aspects of the organisation of working time" expressly prohibits the payment of an allowance in lieu of annual leave except where the employment relationship has ended. The Act was enacted to transpose that Directive and in accordance with settled law it must be interpreted and applied so as to achieve the result envisaged by the Directive (C-14/83 Von Colson and Kamann v Land Nordrhein-Westfalen [1984]ECR 1891). Article 7 reflects the fact that the Directive is a health and safety measure and the requirement to provide employees with a minimum amount of paid annual leave per year is a health and safety imperative. This was made clear by the ECJ in C - 173/99R v Secretary of State for Trade and Industry ex parte Broadcasting, Entertaining and Cinematography and Theatre Union[2001] IRLR 559.
InVon Colson&Kamann v Land Nordrhein - Westfalen [1984J ECR1891 the CJEU has made it clear that where such a right is infringed the judicial redress provided should not only compensate adequately for economic loss sustained but must provide a real deterrent against future infractions.
In this case the Court is satisfied that the appropriate form of redress is an award of compensation. In considering the element of its award to cover the economic loss suffered by the Complainant the Court has had regard to the rate of pay applicable to the Complainant at the material time calculated in accordance with Regulation 3(3)(a) of the Organisation of Working Time (Determination of Pay for Holidays) Regulations SI No. 475 of 1997.
Claim in respect of the period from 1stApril 2009 until 29thJuly 2009
For the period from 1stApril 2009 until 29thJuly 2009 the Complainant accrued an entitlement to almost 30 hours’ annual leave in accordance with Section 19 of the Act. From the details supplied by the Respondent, which included payslips for the period from April 2009 until September 2009, it is clear that the Complainant was paid for the months of June, July and August 2009 while he was not working, therefore, the Court is satisfied that he received more than the 30 hours he was entitled to under Section 19 of the Act.
Accordingly, the Court finds that the Complainant received his statutory period of annual leave and was paid for such leave at his normal rate of pay, therefore, the Court finds that the Respondent was not in breach of Section 19 of the Actfor this period.
Alleged Breach of Section21:Failure To Grant Public Holiday Entitlements
Based on the information supplied at the hearing the Court is satisfied that the Complainant received his entitlement under Section 21 of the Act for the 4 public holidays which occurred in that period, namely, 17thMarch, 13thApril, 4thMay and 1stJune 2009. Therefore the Court finds that the Respondent was not in breach of Section 21 of the Act.
Alleged Breach of Section25:Failure to Maintain Records
The Complainant submitted that the Respondent failed to maintain records in relation to his annual leave and public holiday entitlements as is required by S.I. No. 473 of 2001: Organisation of Working Time (Records) (Prescribed Form and Exemptions) Regulations 2001.Section 25(4) of the Act provides, in effect, that where records are not kept in the prescribed form the onus of proving, in proceedings before this Court, that the provisions of the Act have been complied with in respect of the Complainant rests on the employer.
The Court is satisfied that the Respondent has proved compliance with Section 25 of the Act.
Alleged Breach of Section26:Penalisation
The Complainant submitted that the Respondent had penalised him for referring a complaint under the Act when it laid him off for the summer holidays on May 31st2009. However, the Complainant informed the Court that the Respondent paid him holiday pay during annual leave at his normal weekly rate of pay in July and August 2009.
The Complainant submitted that he was penalised when the Respondent implemented this change to his pay without informing him, without explaining that the July and August payments were made in compliance with the Act and without admitting liability under the Act. At the same time the Complainant asserted that following the submission of the complaint under the Act, the Respondent also changed his rate of pay without agreement. By letter received on 19th August 2009 the Respondent informed him that as from 1st September 2009 he would be paid throughout the year at point one of the qualified teachers’ incremental scale instead of at an hourly rate for the work done. Moreover, the Complainant submitted that a further act of penalisation occurred when by letter dated 19th August 2009 the Respondent made a financial demand for overpayment of wages back to the 26th August 2006. He contended that these acts by the Respondent constituted penalisation within the meaning of the Section 26 of the Act.
The Court notes that the claim of penalisation was first raised with the Rights Commissioner on 13th October 2010, the date of the first Rights Commissioner's hearing, more than six months after the alleged acts of penalisation. The Complainant sought an extension of time in accordance with Section 27(5) of the Act.He told the Court that the reason for the delay in submitting the claim was due to a substantial delay in setting up the Rights Commissioner's hearing to hear his claims under Section 19, 20 and 21 of the Act through no fault of his own.
The Court is of the view that it was not necessary to await a hearing before the Rights Commissioner in order to submit a claim pursuant to Section 26 of the Act. Such a claim could have been submitted at any time after the alleged acts of penalisation and the Complainant was very familiar with the process. In any event, by introducing the claim at the hearing before the Rights Commissioner, not only was it out of time but it afforded no opportunity for the Respondent to defend its position nor even to be forewarned that such a complaint was being made.
The Court is not satisfied that awaiting a hearing of the Rights Commissioner to deal with the Complainant's claims under Sections 19, 20 and 21 of the Act is a reasonable explanation for the delay in submitting his claim pursuant to Section 26 of the Act. Consequently, the Court rejects the application and determines that the claim is out of time.
Determination
The Court has found that the Respondent was in breach of Section 19 of the Act during the 7-month period 1stSeptember 2008 until 31stMarch 2009, and the Complainant has an outstanding entitlement to compensation for almost 52 hours’ annual leave.
The Court measures the quantum which is fair and reasonable in all the circumstances at €3000 and directs the Respondent to pay to the Complainant compensation in that amount. Consequently the Court varies the Rights Commissioner's Decision.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
19th July 2012______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.