FULL DECISION
SECTION 44, WORKPLACE RELATIONS ACT 2015 SECTION 28 (1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES: KILKENNY COUNTY COUNCIL (REPRESENTED BY LGMA) AND BRIAN MCENEANEY (REPRESENTED BY SIPTU) DIVISION:
SUBJECT: Appeal of Adjudication Officer Decision No's: ADJ-00038192 (CA-00049584-001) DECISION: Background to the Appeal This is an appeal by Mr Brian McEneaney (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00038192/CA-00049584-001, dated 2 March 2023) under the Organisation of Working Time Act 1997 (‘the Act’). The Adjudication Officer held that the Complainant’s claim for the inclusion of regular and rostered overtime and allowances in the calculation of his annual leave payments, retrospective to the commencement of his employment in 2001 with Kilkenny County Council (‘the Respondent’), was not well-founded. The Complainant’s Notice of Appeal was received in the Court on 6 March 2023. The Court heard the appeal in Waterford on 28 November 2023. Summary Factual Background The Complainant referred his initiating complaint under the Act to the Workplace Relations Commission on 8 April 2022. He has been employed by the Respondent since 2001, initially as a General Operative and, since 2003, as a Driver. He is paid €17.18 per hour and is contractually entitled to twenty-five days’ annual leave per annum. The Complainant is required to perform regular rostered overtime every second weekend on a rota basis with another Driver. The overtime consists of four hours worked on a Saturday and four hours worked on a Sunday. The Complainant also receives the following allowances: a Washing allowance of €16.15 per day for washing his work vehicle; an Early Rising allowance of €7.24 per day and a tax-exempt Eating-on-Site allowance of €7.24 per day. In June 2023, the Respondent paid the Complainant a sum which equated to the difference between his annual leave entitlement for the period 1 January 2022 to 31 December 2022, calculated with respect to his basic rate of pay only, and that same entitlement calculated on the basis of his actual pay, inclusive of overtime and applicable allowances. It is common case that the Complainant availed himself of 13 days’ annual leave in the period 9 October 2021 and 31 December 2021. Had he been remunerated for his annual leave taken in that period at a rate of pay that incorporated his regular and rostered overtime and applicable allowances he would have received an additional €249.03 over and above the amount actually paid to him.
The Complainant’s Submission The Complainant’s representative presented to the Court a very comprehensive written review of the jurisprudence of the Court of Justice of the European Union with regards to workers’ annual leave entitlements under the Working Time Directives. Having regard to that jurisprudence, it is submitted that the Complainant has an entitlement to have the payments he received for his statutory and contractual annual leave back to the commencement of his employment in 2001 recalculated at a rate of pay that includes his regular and predictable overtime and all of his allowances.
The Respondent’s Submission The Respondent submits that the CJEU jurisprudence relied on by the Complainant relates only to the statutory element of the Complainant’s annual leave entitlements and, furthermore, that that jurisprudence is not authority for setting aside the limitation period applicable to complaints under the Act, as specified in the Workplace Relations Act 2015.
Discussion and Decision This Court has given detailed consideration in a number of recent decisions to the issues that fall for consideration in this appeal. In DWT2312, dated 29 June 2023, the Court held as follows:
“[T]he Complainant is entitled to have his regular rostered overtime included in the calculation of his pay while on annual leave. The Court determines that the eating on site allowance is an expense and not an allowance in the nature of pay and therefore does not fall to be included in the calculation of normal pay for the purpose of annual leave. In respect of the Complainant’s claim for retrospection, as set out above, while the interpretation by the CJEU can be applied to legal relationships that existed prior to the judgment, this is subject to the conditions for bringing a dispute relating to the application of that law before the Courts having jurisdiction are satisfied. In this case the conditions for taking a case as set out in the WRC Act 2015, at section 41 is that the complaint must be lodged within six months of the breach.”
Applying the reasoning of the Court in DWT2312 to the facts of the within appeal, the Court finds that element of the claim that seeks full retrospective recalculation of the Complainant’s annual leave entitlements back to the date of the commencement of his employment with the Respondent fails. The Complainant, the Court finds, is entitled to have payment of his statutory annual leave calculated having regard to his normal and predictable overtime plus his allowances, other than his Eating-on-Site allowance, which is not an allowance in the nature of pay. The period comprehended by the within claim is 9 October 2021 to 8 April 2022. The Complainant has received his full entitlements under the Act for the period 1 January to 8 April 2022. As has already been noted, the Respondent has conceded that there is a shortfall of €249.03 in the amount paid to the Complainant in respect of annual leave taken in the period 9 October to 31 December 2021. The Court, therefore, awards this amount to the Complainant plus compensation of €750.97 for the breach of the Act that occurred in his case. The decision of the Adjudication Officer is set aside and the appeal succeeds. The Court so decides.
NOTE Enquiries concerning this Decision should be addressed to Aidan Ralph, Court Secretary. |
