DWT2318

1.Appeal of Adjudication Officer Decision No(s)ADJ-00036906 CA-00048239-003

BACKGROUND:

2.The Worker referred her case to the Labour Court on 29 June 2023, in accordance with Section 28(8) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 16 August2023. The following is the Determination of the Court:

DETERMINATION:

This is an appeal by Theresa McAteer (the Complainant) against Decision ADJ-00036906 of an Adjudication Officer in relation to her complaint against her employer the Legal Aid Board (the Respondent) pursuant to a contravention of the Organisation of Working Time Act 1997 (the Act).
The Adjudication Officer held that the complaint was not well-founded.

Background

The Complainant alleges that 14 days annual leave were unlawfully deducted from her annual leave allowance on 21 July 2021. The Respondent submitted that the decision to recalculate the Complainants leave was made by the NSSO who provide a shared service to the Respondent in respect of such matters as annual leave. The Complainant lodged her complaint with the WRC on the 20^thJanuary 2022.

Summary of the Complainant’s submission
The Complainant is employed by the Respondent as a solicitor since 1^stMarch 2001. The Complainant was absent on sick leave for a period from May 2017 until November/ December 2019. She is currently on sick leave and had periods of sick leave in the intervening periods. The issue in dispute is statutory annual leave of 14 days that the Complainant accrued in the 2018/2019 annual leave year.
The Complainant submitted that in and around 1^stApril 2020 when she checked her annual leave on the NSSO portal it showed that she had 47 days this included the 14 days that she had accrued in the 2018/2019 annual leave year. The portal indicated that the days were available to her until the 21st July 2021, when they were unilaterally removed without any notification to the Complainant, that she was going to lose them. On the 9th August 2021, the Complainant got a letter from the Respondent’s HR advising that her annual leave had been recalculated, and that NSSO had retrospectively docked her 14 days on the basis of what they described as the 15 month rule.

The Complainant submitted that this action by the NSSO who were acting on the Respondent’s behalf was contrary to the principles regarding entitlement to annual leave which are well settled in CJEU caselaw. The Complainant opened a number of cases to the Court and drew the Court ‘s attention toCase C-684/16 Max-Planck-Gesellschaft Zur Forderung der Wissenschafen e.V. v Tetsuji Shimizu. In thatcase, the CJEU held that the burden of proof lay with the employer to ensure that the worker took the leave, and was aware, that if they did not take the leave, they would lose it. In this case neither the Respondent nor the NSSO advised the Complainant that she was in danger of losing the leave. Instead, they retrospectively withdrew it without any notification.

Summary of the Respondent’s submission
Mr Murray BLonbehalfof the Respondent submitted that the NSSO provides a shared service to Public Service bodies in the areas of HR, pensions, payroll administration and financial management. The decision to recalculate the Complainant’s annual leave was made by the NSSO. The Respondent correctly notified the NSSO when the Complainant returned to work after her absence on sick leave. The Respondent is not in a position to calculate or recalculate the annual leave as this is a function of the NSSO.
The Complainant’s annual leave was recalculated to provide for the 15-month rule under section 20 (1) of the Act, which provides for the carry forward of annual leave that accrued while on sick leave. The Respondent fully complied with the requirements of national legislation as set out in the Act. Mr Murray BL stated that it is not unlawful for the Oireachtas to lay down conditions for the exercise of the right to paid annual leave, including the loss of that right, provided the employee has had the opportunity to exercise the right (SebastianKreuziger v Land berlinC-619/16 ).
The Complainant has access to the NSSO portal where all her details regarding annual leave are held. The Complainant returned to work in April 2020 and had ample time to take the leave prior to losing it. It is the Respondent’s submission that the Complainant did not exercise her right during the designated period.

The applicable law
The Act at section 20 sets out the time and pay for annual lease as follows:

• (1) The times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements and subject—
  (a) to 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 1 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—
  (i) within the leave year to which it relates,
  (ii) with the consent of the employee, within the period of 6 months after the end of that leave year, or
  (iii) where the employee—
  (I) is, due to illness, unable take all or part of his or her annual leave during that leave year or the period specified in subparagraph (ii), and
  (II) has provided a certificate of a registered medical practitioner in respect of that illness to his or her employer,
  within the period of 15 months after the end of that leave year].

• “ 45) To that end, as the Advocate General also observed in points 41 to 43 of his Opinion, the employer is in particular required, in view of the mandatory nature of the entitlement to paid annual leave and in order to ensure the effectiveness of Article 7 of directive 2003/88, to ensure, specifically and transparently, that the worker is actually in a position to take paid annual leave to which he is entitled, by encouraging him, formally if need be, to do so, while informing him, accurately and in good time so as to ensure that that leave is still capable of ensuring for the person concerned the rest and relaxation to which it is supposed to contribute, that, if he does not take it, it will be lost at the end of the reference period or authorised carry-over period.
  
  46) In addition, the burden of proof in that respect is on the employer. Should the employer not be able to show that it had exercised all due diligence in order to enable the worker actually to take the paid annual leave to which he is entitled, it must be held that the loss of the right to such leave at the end of the authorised reference or carry-over period, and in the event of the termination of the employment relationship, the corresponding absence of a payment of an allowance in lieu of annual leave not taken constitutes a failure to have regard, respectively, to Article 7 (1) and Article 7 (2) of the Directive 2003/88.
  
  47) However, if the employer is able to discharge the burden of proof in that regard, as a result of which it appears that it was deliberately and in full knowledge of the ensuing consequences that the worker refrained from taking the paid annual leave to which he was entitled after having been given the opportunity to exercise his right thereto, Article 7 (1) and (2) of Directive 2003/88 does not preclude the loss of that right or, in the event of the termination of the employment relationship, the corresponding absence of an allowance in lieu of the paid annual leave not taken.”

Mr Murray BL on behalf of the respondent submitted that the managing of annual leave was a function of the NSSO, and it fell to them to issue the relevant notifications and reminders and any failures in that regard were the failures of the NSSO. However, he accepted that under the Organisation of Working Time Act the employer is obliged to keep records. In this instance the Respondent had no record, and had not been in a position to obtain a record from the NSSO of any correspondence to the Complainant in advance of the 30^thJune 2020 informing her that the 14 days annual leave carried over from the 2018/2019 annual leave year, would be lost if not used by that date. Furthermore, no correspondence was issued to the Complainant prior to the decision to retrospectively in July 2021, remove the 14 days annual leave.
It is clear to the Court that in this case the Respondent has not discharged the burden of proof they bear, to show that the Complainant was informed accurately, and in good time, that if she did not take the annual leave within the reference period the annual leave would be lost. On that basis the Court determines that there has been a breach of the Act.

Determination
The Court having determined that there has been a breach of the Act, further determines that the Complainant is entitled to have the 14 days annual leave restored to her with immediate effect and that the Respondent should pay the Complainant compensation of €3,500.
The appeal succeeds. The Decision of the Adjudication Officer is set aside.
The Court so determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
DC	______________________
24 August 2023	Deputy Chairman