DWT12171

FULL RECOMMENDATION

WTC/12/163

DETERMINATIONNO.DWT12171

(r-118893-wt-11/MMG)

SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997

PARTIES :

WICKLOW COUNTY COUNCIL
(REPRESENTED BY LGMSB)

- AND -

WILLIAM WINTERS

DIVISION :

Chairman: Mr Hayes
Employer Member: Ms Doyle
Worker Member: Ms Tanham

SUBJECT:
1. Appealing against a Rights Commissioner's Decision r-118893-wt-11/MMG.

BACKGROUND:

2. The Claimant commenced employment with the council on the 27th August 2007 and worked as an Engineer until cessation on the 1st July 2011. The Claimant contends that the Council is in breach of the legislation in so far as short notice was given regarding his annual leave. The Council states that the matter of holidays is out of time as more than six months elapsed before the complaint was lodged with the Rights Commissioner. The issue was investigated by a Rights Commissioner and the following Determination was issued on the 25th June 2012.

"I have formed the opinion that the claimant's case is not well founded and as such it is my decision that the complaint must fail."

The Employee appealed the Rights Commissioner’s Decision to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997 on the 27th July, 2012. The Court heard the appeal on the 8th November, 2012, the earliest date suitable to the parties.

UNION'S ARGUMENTS:

3. 1. The Council failed to give the Claimant the required one months notice period regarding his annual leave required under the 1997 Act.

2. The Claimant has an automatic entitlement to be compensated for the four days of unused annual leave entitlements which were extant as of the date of termination of his employment.

COMPANY'S ARGUMENTS:

4. 1. All holidays were granted to the Claimant and the taking of same, as is the norm, left to the Employee and his line Manager. The Council consider that enough time was allowed for the Claimant to avail of his holidays before his employment was terminated.

2. The Council contends that the Claimant is seeking to substitute the requirement for annual leave with a payment in lieu.

DETERMINATION:

Background

Mr Winters (“the Complainant”) worked forWicklow County Council (“the Respondent” or “the Employer”) as an engineer, on a series of fixed term contracts of employment, from the 27^thAugust 2007 until his employment terminated on the 1^stJuly 2011. On the 3^rdJune 2011 the Respondent gave him written notice that his employment would terminate on the 1^stJuly 2011. The letter went on to say that in the interim he should “make arrangements with Mr Duncan Cole, Project Engineer with regard to availing of your annual leave entitlements of 4.5 days up to and including 1^stJuly 2011”.

The Respondent made arrangements to take a half days leave before his employment terminated at which time he had an outstanding entitlement to 4 days leave. The Respondent refused to pay the Complainant cesser pay in respect of the outstanding days.

On the 22^ndDecember 2011 the Complainant submitted a complaint to the Rights Commissioner under Section 27 of the Organisation of Working Time Act 1997 (“the Act”). In relevant part the complainant states

“My complaint is that I was given notice of the termination of my employment on 3^rdJune 2011 and I was required to take my outstanding annual leave entitlements within this notice period.”

Before the Rights Commissioner the Complainant made the following arguments in support of his complaint: -

•Contrary to the provisions of Section 20 of the act, his employer did not consult with him at least on month prior to the date on which he was granted or required to take his annual leave or a portion thereof and
•Contrary to the provisions of Section 23 of the Act his employer refused to pay him cesser pay in respect of the four outstanding days leave to which he was entitled on the termination of his employment.
The Rights Commissioner decided that the complaint was not well founded and held against the Complainant. He appealed that decision to the Labour Court.
The Case came on for hearing on Thursday 8^thNovember 2012.
Position of the Parties
The Complainant argues that the respondent did not consult with him regarding the timing of his annual leave. He further argues that the notification, advising him to make arrangements to take his outstanding annual leave, was sent to him less than one month before the latest date on which he could commence such leave. Accordingly, he argues that his employer breached the provisions of Section 20 of the Act.
He further argues that the Respondent took no account of his need for rest and relaxation or of his need to balance work and family life when proposing a time scalefor his annual leave. He further argues that the employer at no stage told him to take his outstanding annual leave before his employment terminated; it simply told him that he “should make arrangements” to do so. He submits that placed him under no obligation to do so and even if it did the Respondent was not lawfully entitled to so oblige him as it had not complied with the provisions of the relevant parts of Section 20 of the Act.
Finally he argues that as he was not “granted” the annual leave to which he was entitled. Accordingly, he argues, section 23 of the Act requires the Respondent to pay him four day’s pay by way of compensation for the outstanding leave due to him at the termination of his employment.
Respondent’s Position
The Respondent submits that the Complainant is statute barred in respect of this complaint. It submits that any purported breach of the Act, which is denied, took place on the 3^rdJune 2011. The Complaint was submitted to the Rights Commissioner on the 22^ndDecember 2011, some six months and 19 days later. The Respondent submits, pursuant to Section 27 of the Act, that the statutory time limit for submitting complaints under the Act is set at six months and accordingly this Court does not have jurisdiction to hear the Complaint.
The Respondent further submits that the Complaint relates to an alleged breach of Section 20(1) (b), of the Act and accordingly subsequent complaints regarding alleged breaches of Sections 20(1) (a) and 23(1) of the Act were never formally referred to or considered by the Rights Commissioner. It acknowledges, however, that they were raised in the course of the hearing into the complaint conducted by the Rights Commissioner. Nevertheless it submits that this Court does not have jurisdiction to consider an appeal relating to matters that were not properly before the Rights Commissioner.
The Respondent submits that the Complainant was notified by letter of the 3^rdJune 2011 that he should make arrangements to take all outstanding annual leave entitlements before his employment terminated on the 1^stJuly 2011. It argues that it had accordingly “granted” the Complainant his annual leave entitlement within the meaning of Sections 20 and 23 of the Act. It submits that, as it had “granted” the Complainant his outstanding leave entitlement, no compensatory payment, by way of cesser pay, was due to him on the termination of his employment. The Complainant’s decision not to avail of the leave his employer had granted to him, took him outside the scope of Section 23 of the Act.
Findings of the Court
The relevant sections of the Act are
Times and pay for annual leave
20.(1) Thetimes 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.

In relevant part section 23 of the Act provides

Compensation on cesser of employment

23.—(1)Where—

(a)an employee ceases to be employed, and
- (b)the whole or any portion of the annual leave in respect of the current leave year or, in case the cesser of employment occurs during the first half of that year, in respect of that year, the previous leave year or both those years, remains to be granted to the employee,

the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave.

Section 27 in relevant part provides

(4)A rights commissioner shall not entertain a complaint under thissectionif it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

It is common case that the Complainant had four and half days annual leave entitlement outstanding when he was notified that his employment would terminate on the 1^stJuly 2012. That notification was sent to him on the 3^rdof June 2011. A simple review of the two dates reveals that his employment was due to terminate less than one month after he the date on which he received the notice of termination.

- Section 27 (1) of the Act provides
  (1) Thetimes 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

On the evidence presented the Court finds that, contrary to the provision of Section 27(1) of the Act, the employer, when granting annual leave to the Compainant, did not take into account the Complainant’s need to reconcile work and family responsibility and or the opportunities for rest and recreation available to the employee. Moreover the letter sent to the employee dated the 23 June 2011 does not meet the employer’s obligation set out in Section 27(1) (b) of the Act to consult with the employee. Moreover it was sent less than 1 month before the day on which the annual leave or, a portion thereof was due to commence.

Accordingly the Court finds that the employer cannot maintain the argument that it “granted” the Complainant, in the manner prescribed by the Act, the portion of annual leave to which he was entitled at that time.

Determination

The Court determines that the Complainant had an entitlement to cesser pay in respect of the outstanding portion of annual leave to which he was entitled at the termination of his employment.

Time Limit:

The Complainant submitted his complaint to the Rights Commissioner on the 21 December 2011. His employment terminated on the 1^stJuly 2011. He was told he “should make arrangements” to take the outstanding portion of his annual leave entitlement on the 3^rdJune 2011. The Respondent submits that any breach of the Act occurred on the 3^rdJune 2011 and as the Complaint was submitted to the Rights Commissioner more than six months later the Rights Commissioner is consequently statute barred from considering the complaint.

The Court has found that the Complainant had not been granted a portion of his annual leave entitlement before the date on which his employment terminated. The Respondent at that time refused to pay him cesser pay in respect of the outstanding annual leave. Accordingly that is the date on which the impugned act occurred. The Complaint was submitted to the Rights Commissioner within six months of the date of termination of his employment.

Determination on the Time Limit Issue

The Court determines that the Rights Commissioner had jurisdiction to entertain the complaint.

Nature of the Complaint

The Respondent submits that, before the Rights Commissioner, the Complainant alleged a breach of Section 20(2) of the Act. Accordingly it submits that, as the hearing into the Complaint took place more than six months after the date of termination of the Complainant’s employment, neither the Rights Commissioner nor this Court is entitled to consider a complaint under Section 23 of the Act.

The Complaint to the Rights Commissioner is expressed on the Complaint Form under the heading (d) Holidays (Annual Leave and/or Public Holidays in the following terms

- “I was given notice of the Termination of my employment on 3^rdJune 2011 and I was required to take my outstanding annual leave entitlements within this notice period.”

Neither the complaint form nor the complaint itself refers to any section of the Act.

Section 27(10) of the Act provides

(10)The Minister may by regulations provide for any matters relating to proceedings under thissectionthat the Minister considers appropriate.

The Minister has made no regulations regarding the forms to be used when making a complaint under the Act.

It is settled law that the form in use is administrative rather than statutory in nature. It does not require the Complainant to specify the sections of the Act under which a complaint is made. It simply requires a complainant to set out his or her complaint in the most general of terms under various headings broad headings. It is therefore a matter for the complainant to specify the precise nature of the complaint before the rights commissioner under each of the headings.

In this case both parties agree that the Complainant, by way of submission to the Rights Commissioner, specified contraventions of Sections 21 and Section 23 of the Act relating to annual leave entitlement and cesser pay. The Respondent further confirmed to the Court that it was given adequate opportunity to address the complaints before the Rights Commissioner.

Accordingly the Court finds that the complaint regarding the alleged breach of Section 23 of the Act was properly before the Rights Commissioner, the employer was on notice of the Complaint and was provided with adequate opportunity to address the Rights Commissioner regarding each of the complaints.

Determination on the nature of the Complaint before the Court

The Court determines that the complaint is properly before this court also.

Determination

The Complainant, within the statutory time limits, submitted a well-founded complaint to the Rights Commissioner regarding an infringement of Section 20 of the Act by his employer and a denial of his entitlements under Section 23 of the Act. The Court determines that the Complainant is entitled to cesser pay in respect of the four days annual leave he had not been granted by the respondent prior to the termination of his employment. The Court orders the Respondent to pay the Complainant an amount equivalent to four day’s pay.

The Court so determines

Signed on behalf of the Labour Court

Brendan Hayes
21st January, 2013______________________
JFDeputy Chairman

NOTE

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