Complainant

Respondent

Parties

Edel  McGettigan

Liffeyfield Ltd t/a Bonnington Centra

Representatives

 N/A

Thomas Ryan, Peninsula

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-00036558-001

08/06/2020

The Complainant has been employed as a general manager in the Respondent’s shop since 1 June 2013. She is paid a weekly salary of €961.54. She stated that she did not receive either her annual leave or her public holiday entitlements in 2018 or 2019 while she was on sick and maternity leave.

The Complainant stated that she was entitled to 30 days annual leave in accordance with her contract of employment. She stated that she did not receive either her annual leave or her public holiday entitlements in 2018 or 2019 while she was on sick and maternity leave.

The Respondent’s representative disputed that the Complainant was entitled to 30 days annual leave and alleged that she did not have any contract of employment to support this assertion.

The Respondent’s representative also stated that as the complaint was made to the WRC on 8 June 2020, the Complainant could only be awarded compensation for any leave accrued between 9 December 2019 and 31 December 2019.

Preliminary Points:

1.      There were two respondents named on the complaint form. The Respondent clarified that the correct name of the entity is Liffeyfield Ltd t/a Bonnington Centra. I therefore changed the name of the Respondent to reflect this. 

2.      The Complainant stated on the complaint form that she was seeking her holiday pay for 2016, 2017, 2018 and 2019. She asserted at the start of the hearing however that she had received her outstanding entitlements in respect of 2016 and 2017 and the complaint was now only in respect of her 2018 and 2019 holiday entitlements.

The Law

Article 7 of the Working Time Directive (2003/88/EC) sets out the entitlement to paid annual leave as follows:

“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 ended.”    

This provision is transposed into Irish lay by virtue of the enactment of Sections 19, 20 and 23 of the Organisation of Working Time Act.

Section 19 of the Organisation of Working Time Act 1997 outlines that an employee’s annual leave entitlement is based on the amount of time that they have worked during the year as is calculated in three ways:

(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):

Section 20 (1) deals with the times at which annual leave is granted to an employee and this is determined by the employer subject to a number of provisions:

(a)   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 one 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 6 months thereafter.

(2) The pay in respect of an employee’s annual leave shall –

(a) be paid to the employee in advance of his or her taking the leave,

(b) be at the normal weekly rate or, as the case may be, at a rate which is proportionate to the normal weekly rate, and ….”

Section 23 of the Act outlines the compensation to be given when an employee ceases to be employed:

23. (1) Where –

a)     an employee ceases to be employed, and

b)     the whole or any portion of the annual lave in respect of the current leave year or, in the case the cesser of employment occurs during the first half of that year, in respect of that year, the previous leave 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.

The Act also outlines an employee’s entitlement in respect of public holidays.

21. (1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely –

(a) a paid day off on that day,

(b) a paid day off within a month of that day,

(c) an additional day of annual leave,

(d)   An additional day’s pay:

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.

The Workplace Relations Act 2015 at section 41, in relevant part, provides 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.

FINDINGS

The Complainant is seeking payment for holidays for the Respondent’s leave years 2018 and 2019, namely 1 January – 31 December 2018 and 1 January – 31 December 2019.  She earned a total of €961.54 per week gross and claimed that she received no payment in respect of either her annual leave or her public holiday entitlements. 

The first question to be addressed is whether the Complainant can receive all of her untaken annual leave and public holidays for the years 2018 and 2019 given that she did not make a complaint to the WRC until 8 June 2020.

I note firstly that in the case of Royal Liver Assurance v Macken [2020] 4 IR 427, it was held that “under Section 27(4) of the 1997 At, the complaints are out of time and the Rights Commissioner had no jurisdiction to entertain any complaint relating to the contravention of the applicant’s annual leave obligations and obligations in respect of public holidays oved to the respondents arising during the leave year 1999-2000”.   Specifically, in that case, the High Court held that the latest date of contravention to grant leave was the last day of the leave year in question. 

Annual Leave

In the context of that High Court decision and Section 41 (6) of the Workplace Relations Act cited above, the period to submit a complaint in relating to any alleged contraventions surrounding annual leave is six months from the end of the statutory leave year. Given that this runs from 1 April to 31 March each year, it would appear that, in line with the High Court decision above, the complaint is out of time in respect of the period from 1 January 2018 (the date from which the Complainant asserts it should begin) to 31 March 2019 (the end of the statutory 2018/2019 year). It appears to be in time however for the first nine months of the 2019/2020 leave year, 1 April 2019 to 31 December 2019 (the date from which the Complainant asserts it should end), given that the complaint was made on 8 June 2020 which was less than six months after the end of the 2019/2020 statutory leave year, namely 31 March 2020.   

I must however recognise that there is a significant amount of Court of Justice of the European Union (the CJEU) jurisprudence in relation to annual leave and the impact of this is well set out by the Adjudication Officer in ADJ-00019188.  Specifically, the CJEU jurisprudence has established that the right to annual leave is derived from a General Principle of European Law and the Charter of Fundamental Rights of the European Union.   

The CJEU has made important decisions in relation to the carry-over of annual leave.  In one particular case, KHS AG v Winfried Schulte C-214/10 recognises that “a provision of national law setting out a carry-over period for annual leave not taken by the end of the reference period aims, as a rule, to give a worker who has been prevented from taking his annual leave an additional opportunity to benefit from that right at the end of the reference period or of a carry-over period.  However, the Court attached to that finding of principle the condition that a worker who has lost his right to paid annual leave must have actually had to the opportunity to exercise the right conferred on him by that directive.”  In that case the worker was unable to work due a serious health issue between the years 2002 and 2008.  In another case, King v The Sash Window Workshop Ltd, C-214/16, the UK Court of Appeal had concluded that the maximum carry-over period of 18 months, but the CJEU did not agree with the imposition of such a limitation.

The implication of these and other judgements is that the loss of annual leave is not automatic and only arises in circumstances where the employer can demonstrate that the worker was put in a position to take the leave he or she was entitled to.

In this instant case the Complainant was entitled to annual leave and as I have highlighted above, the right to this leave is a fundamental right according to the Directive and Charter.  Given the significant jurisprudence in the CJEU in relation this matter, I must safeguard the Complainant’s right to paid annual leave and note that the Respondent was aware of the complainant’s entitlement to annual leave and did not dispute that the Complainant was on either sick or maternity leave for their 2018 and 2019 leave years and was therefore unable to take her annual leave or was not paid for it.

The Complainant is therefore entitled to payment for annual leave for the Respondent’s 2018 and 2019 leave years. While I note that the Complainant asserted that she is entitled to 30 days annual leave in accordance with her contract of employment and that the Respondent disputed this, she also highlighted that she had been paid 30 days per year annual leave in respect of 2016 and 2017 and that this was not disputed by the Respondent. While this may have been her contractual entitlement, I note however that s. 19 of the Act, cited above, states that the annual leave entitlement is capped at 4 working weeks and find that I am therefore bound by this.

Public Holidays

I note that the Complainant is also claiming that she is entitled to 18 public holidays, 9 days in respect of 2018 and 9 days for 2019. As I have highlighted above however, Section 41 (6) of the Workplace Relations Acts states that I can only entertain a complaint which has been presented within “6 months beginning on the date of the contravention to which the complaint relates”. In the absence of any reasonable cause having been presented to me which would have allowed me to extend the period to 12 months, I find that the cognizable period in relation to the non-payment of public holidays is 9th December 2019 to 8th June 2020.

As highlighted above, s. 19 of the Act states that the maximum annual leave entitlement is 4 working weeks, namely 20 days holidays, and nothing to the contrary has been asserted by the CJEU jurisprudence. Accordingly, the Complainant is entitled to 4 weeks’ annual leave entitlement in respect of both 2018 and 2019, namely an amount of €7,692.32.

Given that the cognisable period is between 9th December 2019 and 8th June 2020, that the Complaint did not suggest that she was seeking payment for any public holidays in 2020 and that that there were only 2 public holidays between 9th December 2019 and 31st December 2019, namely 25th and 26th December, she is entitled to a payment of €384.62.

Having found that the complaint is well founded for the reasons outlined above, I find that the Respondent should pay the Complainant a total of €8,076.94 in respect of the breaches of the Act.

Annual leave entitlement; cognisable period