DWT165

The Complainant makes three complaints to the Court. Firstly she contends that in March 2014 the Respondent paid her money in lieu of leave for her outstanding annual leave entitlements. The Complainant contends that this amounts to an infringement of the Act. Secondly the Complainant contends that she was not given two uninterrupted weeks’ leave in the leave year 2013/2014. Finally the Complainant contends that she was not paid her statutory entitlements in respect of a number of public holidays that fell during her employment with the Respondent.

The matter was considered by a Rights Commissioner who decided that the Complainant’s cases were not well founded. The Complainant appealed against those decisions to this Court.

The case came on for hearing on 16 October 2015.

Complainants Case

Section 19(3) of the Act

The Complainant states that section 19(3) of the Act requires that she be given an unbroken period of two consecutive weeks leave in a leave year in which she worked 8 or more months. She argues that in the leave year 2013/2014 she worked 8 months and was not afforded two weeks unbroken leave. She contends that this amounts to an infringement of her rights and entitlements under the Act. She further argues that as annual leave is an important health and safety provision for workers any infringement of a person’s entitlement to annual leave must be view seriously by the Court and compensation for an infringement must reflect that seriousness.

The Respondent states that the Complainant was given 10.5 days holidays in the leave year 2013/2014. It argues that there were a number of days outstanding at the end of the leave year when the Complainant was dismissed.

Section 19 (3) of the Act states

• (3) The annual leave of an employee who works 8 or more months in a leave year shall, subject to the provisions of any employment regulation order, registered employment agreement, collective agreement or any agreement between the employee and his or her employer, include an unbroken period of 2 weeks.

It is common case that the Complainant worked 8 or more months in the 2013/2014 leave year. The Complainant argues that there was no agreement in place between her and the Respondent for an arrangement other than the statutory arrangement set out in Section 19(3). The Respondent did not address that argument in its written submission to the Court. Nor did it produce any evidence of an agreement with the Complainant as would justify a departure from the 2 unbroken weeks required by the Act. Accordingly the Court finds that the Complaint is well founded.

The Court notes that the requirement for two unbroken weeks leave is not an absolute statutory requirement and alternative arrangements can be agreed between the employer and the worker.

The Court notes that the Article 1 of the 2003/88/EC states

• Annual leave

  1. Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice.

  2. The minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated.

It would appear therefore that Directive and the Act require that an employee be granted 4 weeks leave but that the Irish Act goes beyond the Directive in certain regards. Accordingly in deciding the level of compensation that is appropriate in this case the Court must be mindful of the Irish Statute alone and not of the Directive as there is no requirement for two unbroken weeks leave set out in the Directive.

The Act states that the remedies available to the Court for a breach of the Act are

• (a) declare that the complaint was or, as the case may be, was not well founded,

  (b) require the employer to comply with the relevant provision,

  (c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the employee's employment,

Having done so, the Court notes that the Complainant received holiday in August 2013, a week’s leave in October 2013 and a final week in December 2013. The Court has considered the nature of the leave taken by the Complainant and notes that the Complainant did not contend that she applied for and was refused two unbroken weeks leave. Indeed the evidence before the Court is that the Complainant was granted the leave she applied for together with the leave attendant upon the Christmas closure. In those circumstances the Court finds that while there is a breach of section 19(3) of the Act the compensation is not an appropriate remedy in this case. The Court instead orders the Respondent to take steps to comply with the relevant provision of the Act.

Determination

The Complaint is well founded. The Court determines that compensation is not an appropriate remedy in this case. The Court orders the Respondent to in future comply with the relevant provision of the Act.

Section 19(1)

The Complainant states that in the leave year 2013/2014 she had an entitlement to 15 days leave, was granted 10.5 days and paid an amount of money in lieu of the balance. She argues that this infringes the Act and the Directive.

The Respondent states that the Complainant had a number of leave days outstanding when she resigned from the Company and that it paid her cesser pay in the relevant amount.

There is a dispute between the parties as to the circumstances in which the Complainant’s employment ended and the circumstances in which she was employed on a revised contract of employment thereafter.

Section 19(1) of the Act states:

(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

• (a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

  (b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

  (c) 8 per cent of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

However the Complainant did not start work with the Respondent until July 2013. 2013 therefore was a year in which the Complainant changed employment or commenced employment. Where she worked prior to taking up employment with this employer was not disclosed to the Court.

Nor was the Court told whether the Complainant had taken leave with a previous employer. Accordingly the Court does not and cannot know whether the Complainant received four weeks leave in the relevant leave year; a matter for the Respondent to raise as a defence had it sought to rely on it.

What was disclosed to the Court is that the Complainant had accrued an entitlement to 15 days’ annual leave but had taken 10.5 days within the leave year. The Respondent paid her the outstanding monies due when her employment terminated.

Entitlement to annual leave is an important matter of safety and health from which there can be no derogation.

The CJEU inFederatie Nederlandse Vakbeweging v Staat der Nederlanden[2006] E.C.R. I-3423 described a worker’s entitlement to paid annual leave as “a particularly important principle of Community social law from which there can be no derogations”.

This Court has consistently ruled that a weekly allowance cannot be substituted for a worker’s statutory annual leave entitlement: seeMikoian v MotovilovaDWT 54/ 2007 andP.B. Cygon Ltd v KowalikDWT 34/2010 .

In those circumstances the Court finds that the Respondent in this case infringed the Complainant’s entitlement to paid time off by way of annual leave contrary to Section 19(1) of the Act.

The Court has reviewed all of the circumstances of the case and has decided the compensation in the sum of € 500 is appropriate in this case.

Determination

The Court finds that the Complaint is well founded and orders the Respondent to pay the Complainant compensation in the sum of €500

Cesser Pay

The Complainant states that when her employment terminated she was working one day per week. However she argues that she had not agreed to that reduction in her hours and that accordingly she was entitled to be paid her holiday pay based on a normal week’s pay or 35 hours per week.

The Respondent argues that the Complainant’s employment had been terminated and that she had requested and been facilitated with work on one day each week to maintain a claim for maternity benefits with the Department of Social Protection. This was disputed by the Complainant.

The Court has considered the submissions of both parties in this matter. There is a dispute as to how and in what circumstances the Complainant came to be working one day per week. However it is a fact that she was so employed and was being paid on that basis. Accordingly the Court finds that her normal week consisted of one day per week and any entitlement to holiday pay was properly based on that reality.

The Court accordingly dismisses that appeal and upholds the decision of the Rights Commissioner.

The Court notes that the circumstances in which the Complainant came to work one day per week may be the subject of separate proceedings. The decision in this case is without prejudice to any matter before any other body arising out of the circumstances that brought that reality about.

Signed on behalf of the Labour Court



Brendan Hayes
19th January 2016______________________
AHDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.