Complainant

Respondent

Anonymised Parties

A Retained Firefighter

A Local Authority

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00029530-001

08/07/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00029530-002

08/07/2019

The complainant is employed by the respondent as a Retained Firefighter since July 2011. The complaints relate to the following alleged breaches of the Organisation of Working Time Act, 1997; Section’s 19 and 20 (Hours of and Payment for Annual Leave) and Section 21 (Hours of work and payment for Public Holidays).

The within complaints were referred to the Workplace Relations Commission on 8th July 2019. The cognisable period of the complaint relating to Public Holiday entitlement is 9th January 2019 to 8th July 2019. The cognisable period relating to Annual Leave entitlements is 1st April 2018 to 8th July 2019.

Note: The complainant also submitted separate complaints on 15th July 2019 bearing the Adjudication reference numbers ADJ 000-21122 which relate to multiple breaches of the Organisation of Working Time Act, 1997 (including breaches in relation to Annual Leave and Public Holiday entitlements). The adjudication decision in ADJ-00021122 should be read in conjunction with the decision of the within complaint.

The complainant contends that he is on standby seven days per week and therefore works 168 hours per week as a retained firefighter. On that basis the complainant asserts that he is entitled to 28 days of annual leave per year (four working weeks). The complainant is also seeking that he be compensated for the blatant breach of the legislation in relation to Annual Leave entitlements retrospective to the commencement date of his employment.

The complainant also asserts that due to the above miscalculation, the complainant has not received the appropriate Public Holiday entitlements since the commencement of his employment. The complainant is seeking that he be compensated in that regard.

The respondent contends that it has not breached the legislation and that the complainant receives his Annual Leave and Public Holiday entitlement in line with the provisions of the Act.

In Decision No. ADJ-00021122, I have addressed the complainant’s assertions that the period of time he spends on standby meets the definition of working time. In line with that decision, I do not find that to be the case and that the “Matzak” decision cannot avail the complainant in advancing the within complaints.

Time Limits

The within complaints have a six-month cognisable period in line with the provisions of Section 41(6) of the Workplace Relations Act, 2015 which states as follows:

“(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

“(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

Entitlement to Annual Leave

Section 19 of the Organisation of Working Time Act, 1997 at relevant part states as follows:

19(1) Subject to theFirst 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):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.

(1A) For the purposes of this section, a day that an employee was absent from work due to illness shall, if the employee provided to his or her employer a certificate of a registered medical practitioner in respect of that illness, be deemed to be a day on which the employee was —

(a) at his or her place of work or at his or her employer’s disposal, and

(b) carrying on or performing the activities or duties of his or her work.

The complainant cited the Northern Ireland Court of Appeal Decision in Chief Constable of the Police Service of Northern Ireland and Northern Ireland Policing Board v Alexander Agnew & Others [2019] NICA 32 in support of its contention that the complainant should be compensated for the breaches of the legislation in relation to his entitlement’s retrospective to the commencement date of his employment. On this issue I note that in this jurisdiction, Section 41(6) of the Workplace Relations Act, 2015 sets out the time limits in relation to referring complaints to the WRC. The Act provides for a six-month time limit which can be extended to twelve months if reasonable cause can be shown for the delay in submitting a complaint. Any complaint relating to earlier years is clearly statute barred by operation of the six-month time limit prescribed by the Act. This issue was definitively decided by the High Court in Royal Liver Assurance v Macken, High Court, Unreported, Lavan J, 15th November 2002.

The complainant asserts that he was not provided with the correct Annual Leave entitlements on the basis that he “works” seven days per week. I have found this not to be the case on the basis that periods of standby do not meet the definition of working time. Accordingly, I find that the complaint in relation to Annual Leave entitlements is not well founded.

The complaints relating to Public Holiday entitlements are also based on the erroneous belief that the complainant works 168 hours per week for the respondent and has worked every Public Holiday in the last year. I find this not to be the case and am satisfied that the complaint is not well founded.

Having considered the submissions and evidence of both parties, I find that the complaints contained within are not well founded.

Retained Firefighter, Annual Leave, Working Time, “Matzak”