DWT12172

The Union involved, on behalf of the Workers concerned, complained to the Rights Commissioner that Office of Public Works (“the Respondent” or “the Employer”) failed to comply with the provisions of Section 20 (b) of the Organisation of Working Time Act 1997 when scheduling their annual leave in December 2011. The Rights Commissioner decided that the complaint was well founded and awarded compensation of €300 to each of the complainants. The Respondent, in accordance with the provisions of Section 28(1) of the Act, appealed against the Rights Commissioner’s Decision to the Labour Court.

The matter came on for hearing before the Court on Tuesday 9 October 2012.

The Respondent’s Position

The Employer submits that it is a branch of a larger public sector organisation that is required to give effect to decisions that are made at central level and communicated to it. On this occasion the relevant Minister decided to maximise the closure of public buildings over the Christmas holiday period in order to reduce the costs involved for the exchequer. This decision was communicated to the Office of Public Works where it was incorporated into Office Notice 26/2011 that was sent to all staff by email in July 2011 and by notice to all locations for display on the relevant staff notice boards.

The Claimants in this case do not have access to email and consequently rely on paper based communications or on the staff notice board for access to official notices. The Employer submits that it placed the notice, announcing the revised Christmas closure arrangements, on the staff notice board in the Rialto Depot in July 2011

It submits that all staff had access to that notice board and they were thereby notified of the proposed holiday arrangements. It submits that this discharged its obligations under section 20(b) of the Act.

Complainant’s Position

The Complainants contend that for over 20 years the OPW opened the depot in which they worked over the Christmas and New Year Holiday period. They contend that they were first consulted about a proposed change to this arrangement in December 2011. They contend that the proposed change had the effect of scheduling, without consultation, three days of their annual leave entitlement. They contend that, contrary to the provisions of Section 20(b) of the Act, neither they nor the trade union of which they are members were, in good time, consulted about the proposed change. They contend that the Rights Commissioner found accordingly and that accordingly her decision should be affirmed by this Court.

Findings of the Court

The Law

The material part of Section 20 of the Act provides

• (1) The times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements and subject—
  • (a) to the employer taking into account—
    • (i) the need for the employee to reconcile work and any family responsibilities,

      (ii) the opportunities for rest and recreation available to the employee,

    (b) to the employer having consulted the employee or the trade union (if any) of which he or she is a member, not later than 1 month before the day on which the annual leave or, as the case may be, the portion thereof concerned is due to commence, and

    (c) to the leave being granted within the leave year to which it relates or, with the consent of the employee, within the 6 months thereafter.

They further submit that the wording of the notice excludes them from its provisions as where it says

“The above arrangements do not affect industrial staff in centres where existing office closure arrangements are already in place or where centres, for operational reasons, must remain open.

They argue that they had an existing closure arrangement in place for 20 years and accordingly had no reason to believe that the notice had any relevance to them. They submit that local management was itself unclear as to whether the notice applied to these workers. The complainants argue that a member of management raised a query with Personnel in mid-December 2011 seeking clarification on this point. Personnel responded to the query by email dated 20 December 2011. They submit that this was the first formal notification to them that the proposed Christmas closure arrangements applied to them. They submit that such notification does not amount to “consultation “within the meaning of that normal or statutory meaning of that term. They further submit that, were the Court to find that it does amount to “consultation”, it did not take place “no later than 1 month before the annual leave was due to commence.”

Conclusions of the Court

The Court finds that management failed to meet the obligations placed on it by Section 20(b) of the Act. The Court finds that, on the balance of probabilities, it did not post the Office Notice 26/2011 on the relevant notice board normally used to communicate with the industrial civil servant grades in the depot. Accordingly it failed to notify the complainants of the proposed change to the Christmas holiday closure arrangements. Furthermore it did not consult with the complainants more than 1 month before the intended change to the timing of their annual leave took effect. In these circumstances the Court finds that the Respondent determined the timing of part of the Complainant’s annual leave entitlements in a manner contrary to the provisions of Section 20(b) of the Act.

Determination

The Court affirms the Decision of the Rights Commissioner. The appeal is dismissed.

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
29th November, 2012______________________
JFDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.