ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001817

Complaint for Resolution

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, and following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

The Complainant has been employed by the Respondent from 1992 until the employment terminated on 27^th January 2016. The Complainant had been on certified sick leave from 2013. The Complainant referred a complaint to the Workplace Relations Commission on 2^nd February 2016 alleging the Respondent had breached Section 23 of the Act.

Summary of Complainant’s Position.

The Complainant is claiming payment of 22.5 days annual leave due on termination of the employment on 27^th January 2016. The Complainant was on certified sick leave for 18 months prior to the cessation of her employment on 27^th January 2016. She states that she is entitled to payment of accrued annual leave accumulated and not taken in that 18 month period. The Complainant had an entitlement to 30 days annual leave. She was paid for 7.5 days. The claim is made pursuant to Section 86 of the Workplace Relations Act, 2015 which amended the Organisation of Working Time Act, 1997

The Complainant quoted from a number of decisions of the European Court of Justice in support of their argument.

Summary of Respondent’s Position.

The Respondent stated that the Complainant has been absent on certified sick leave since February 2013 and had resigned her position on 27^th January 2016. The Complainant’s legal Representative, named, wrote to the Respondent on 11^th January 2016 stating that the Complainant was entitled to payment of accrued annual leave for the 18 months prior to her resignation. The Respondent replied on 27^th January 2016 confirming that the Complainant had accrued annual for the period from 1^st August 2015 when the Organisation of Working Time Act, 1997 was amended. Accordingly she was advised that she had accrued 7.5 days annual leave and she was paid for these under Section 23 of the Act.

The Respondent set out in detail the Act of 1997 both prior to and after the amendment to the Act by Section 86(1) of the Workplace Relations Act, 2015 which came into effect on 1^st August 2015.

The Organisation of Working Time Act, 1977 made provision for annual leave under Section 19 of the Act and “working time” was defined in the same Act by Section 2 (1) which effectively held that annual leave accrued on the basis of “working time” which was defined as any time the employee was at their place of employment and carrying out or performing duties at work. There was no provision in that Act for the accrual of annual leave while on sick leave.

There followed a number of key decision of the Court of Justice of the European Union, notably the decision C-350/06 in Schultz-Hoff in 2009. This decision was further endorsed by the CJEU in later years.

However the Irish Government did not amend the 1997 Act to take account of these decisions until the Workplace Relations Act of 2015 at Section 86(1) of that Act with a commencement order S.I. 338/2015 of 1^st August 2015.

Likewise the Respondent Company is a private sector company and unlike a Public Sector Body or an emanation of the State where the principle of “Direct Effect” does apply, this principle cannot be applied to a private sector company. I refer to the judgement of the CJEU in the Case -282/10 Maribwel Dominguez of 24^th January 2012 which held “it should be borne in mind that even a clear, precise and unconditional provision of a directive seeking to confer rights or impose obligations on individuals cannot of itself apply in proceedings exclusively between private parties”.

I do not have jurisdiction to retrospectively apply decisions of the Court of Justice of the European Union to private companies in circumstances where the national courts did not amend national legislation until 1^st August 2015 in relation to the accrual of annual leave while on sick leave despite the decision in Schultz of 2009.

In accordance with Section 41(5) of the Workplace Relations Act, 2015 I declare this complaint is not well founded.

Rosaleen Glackin

Adjudication Officer

Date: 18/04/2017