DWT14110

The claims, and the Determination of the Court in relation to each of them, are set out hereunder: -

Section 19(1) of the Act – Annual Leave
The Complainant contends that she was not afforded an accrual of annual leave in respect of a period during which she was absent from work on certified sick leave. In contending for such an entitlement the Claimant, through her representative, relied on a decision of the CJEU 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. In that case the Court of Justice held that the entitlement of workers to four weeks paid holidays per year, guaranteed by Article 7 of Directive 2003/88/EC – The Working Time Directive, cannot be made dependant on the number of hours worked in a leave year. Specifically, the Court held that a worker on sick leave continues to accrue an entitlement to annual leave which they must be entitled to take on their return to work.

The Directive cannot have direct effect in a case involving private parties. There are circumstances in which reliance can be place on a Directive in a dispute to which the doctrine of direct effect is inapplicable by application of the related doctrine of conforming or consistent interpretation. The most oft-quoted formulation of the doctrine was provided in Case C-106/89,Marleasing SA v La Comercial Internacionale de Alimentacion SA[1990] ECR 1-4135, as follows: -

• “[I]n applying national law, whether the provisions in question were adopted before or after the directive, the national Court called upon to interpret it is required to do so, as far as possible, in light of the wording and purpose of the directive in order to produce the result pursued by the latter”

The representative of the Claimant was asked by the Court to address it on the basis upon which he submitted that the construction of the Act for which he contends would not involve acontra legeminterpretation. He told the Court that he could make no submissions on that point.

It is for the party who places reliance on a proposition of law to explain to the Court the basis upon which that proposition should be accepted. Where, as in this case, a party is professionally represented it is incumbent on that representative to advance their client’s case by cogent legal arguments. It is not for the Court to make a case for either party.

No submissions have been made on behalf of the Claimant upon which the Court could hold that the doctrine of conforming or consistent interpretation applies in this case. In these circumstances the Court must apply the domestic law as it finds it. Accordingly the Court must hold that the Respondent did not contravene s.19 of the Act in calculating the Claimant’s entitlement to annual leave in the relevant leave year.

Section 19(3) – Times at which annual leave is given
The Claimant contends that the Respondent contravened s.19(3) of the Act in not affording her an unbroken period of 2 weeks annual leave.

That provision only applies where an employee works 8 or more months in the relevant leave year. The Respondent told the Court that the Claimant did not work 8 or more months in the relevant leave year. The Claimant did not offer any evidence nor did she provide the Court with any information to controvert the Respondent’s position on that point.

Accordingly the Court does not accept that this aspect of the claim is well founded.

Section 21 – Public Holiday
The Claimant contends that the Respondent contravened this section by not providing her with a benefit in respect of certain public holidays that fall in the relevant leave year. The Claimant’s employment with the Respondent came within the purview of s.21(4) of the Act. Hence, her entitlement in respect of a public holiday was contingent upon having worked for 40 hours in the five weeks’ preceding that public holiday. It is accepted that the Claimant did not meet that condition in respect of the public holidays in issue.

It was submitted on the Claimant’s behalf that she was absent through illness in the period preceding these public holidays and that the qualifying period of work should be measured by reference to the five weeks in which she last worked before going on sick leave. That is not what the law provides.

The Court is satisfied that the Respondent did not contravene s.21 of the Act in relation to the Claimant.

Section 18 – Zero Hours Working Practice
The submission filed on behalf of the Claimant asserts that the Claimant was not offered work for four weeks in July / August 2013. The Claimant had been on sick leave and indicated her fitness to return to work on 26^thJuly 2013. She was not rostered to work until 23^rdAugust 2013.

Evidence was given on behalf of the respondent by Ms Orla Scuffil who was the Claimant’s manager at the material time. She told the Court that she had discussions with the Claimant in relation to her return date and it was agreed that she would resume work at the next roster period which commenced on 23^rdAugust 2013. According to Ms Scuffil the Claimant agreed to return on that date. The Court accepts the veracity of that evidence.

In these circumstances the Claimant was not provided with work in the relevant period by agreement with her employer. Accordingly the Court is satisfied that the Respondent did not contravene s.18 of the Act in relation to the Claimant.

Outcome
The within claims are not well founded. The decision of the Rights Commissioner is affirmed and the appeal is disallowed.

Signed on behalf of the Labour Court



Kevin Duffy
27th November 2014______________________
SCChairman



NOTE

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