FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : ROSKELL LTD (REPRESENTED BY ARTHUX COX SOLICITORS) - AND - ARMANDS RIKMANIS (REPRESENTED BY RICHARD GROGAN & ASSOCIATES SOLICITORS) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner's Decision No: r-108531-wt-11/RG
BACKGROUND:
2. This case is an appeal by the worker of Rights Commissioner's Decision No: r-108531-wt-11/RG. The issue concerns a claim by the worker for entitlements under the Organisation of Working Time Act, 1997. The matter was referred to the Rights Commissioner for investigation. Her Decision issued on 21st November, 2011 and found that the complaint was well founded. The Rights Commissioner awarded €2000 in respect of entitlements due under the Act. On the 14th December 2012, the employer appealed the Rights Commissioner's Decision in accordance with 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 27th March, 2011. The following is the Court's Determination:
DETERMINATION:
- This is an appeal by Roskell Ltd against the decision of a Rights Commissioner in a claim by Armands Rikmanis under the Organisation of Working Time Act 1997.
In this Determination the parties are referred to as they were at first instance. Hence Armands Rikmanis is referred to as the Claimant and Roskell Ltd is referred to as the Respondent.
The substance of the Claimant’s case is that he was not paid for annual leave which he claims to have accrued while absent from work due to illness. It is accepted that on the facts of the case such an entitlement could not arise if sections 2 and 19 of the Act, literally construed, where to be applied. Rather the Claimant relies Article 7 of Directive 2003/88/EC as interpreted by the Court of Justice of the European Union in joined Cases C-520/06 and C-350/06Stringer and others v. HM Revenue and Customs sub nom Commissioners of Inland Revenue v. Ainsworth and others Schultz-Hoff v. Deutsche Rentenversicherung Bund[2009] IRLR 214.
The Rights Commissioner found that the Claimant was well founded.
The Respondent herein is a private sector employer. Hence the doctrine of Direct Effect of European Law can have no application in this case. The Solicitor for the Claimant was invited by the Court to make full legal submissions on what if any application the related doctrine of Conforming Interpretation might have in the case. It was also pointed out by the Court that in theStringer / Schultzcases the CJEU had held that the Directive does not provide for an entitlement to payment in lieu of holidays except in circumstances in which the employment relationship was ended. In the instant case the Claimant’s contract of employment remained extant at the time his claim was presented to the Rights Commissioner. The Solicitor for the Claimant was also invited to address this point in a supplemental submission.
No further submissions were filed by or on behalf of the Claimant.
The principles applicable in deciding whether a Court can depart from a seemingly clear provision of domestic law so as to give it a meaning consistent with the wording and purpose of a Directive involves difficult and complex legal questions. In the instant case it would be an exercise in futility for the Court to embark on a consideration of those issues. The Claimant remained in the employment of the Respondent at the time he made the within claim. He was on sick leave and was not in a position to take holidays. His claim is, in effect, for payment in lieu of holidays. It is clear that the authority upon which the Claimant relies (theStringer / Schultzcases) does not support such a claim.Determination
For the reasons set out above the Court allows the Respondent’s appeal and the decision of the Rights Commissioner is set aside.
Signed on behalf of the Labour Court
Kevin Duffy
17th September 2012______________________
AHChairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.