Complainant

Respondent

Parties

Bogdan  Krynicki

Kepak Group

Representatives

  Self

Brian Hallissey  B.L. Instructed by Gerald O’Donnell Solicitor, Caulstown Solicitors  

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-00054095-001

11/12/2022

The Complainant was employed by the Respondent as a Trimmer from the 13th of July 2005 until his resignation on the 30th of September 2022.

The Complaint was made pursuant to Section 27 of the Organisation of Working Time Act 1998 to recover allegedly unpaid holiday entitlements from 2020 to the date of resignation on the 30th of September 2022. The Respondent contested the claim in its entirety.

The Complainant represented himself and gave his evidence with the assistance of an interpreter. Both made affirmations.

The Complainant was on sick leave from July 2020 and throughout the year 2021 and up to September of 2022. He alleged that he was entitled to holiday pay for all of 2020 and 2021 and a pro rata entitlement for 2022 up to the date of his resignation on the 30th of September 2022.

The Respondent made written submissions in advance of the hearings and by direction following the final day of hearing.

The complaint was opposed on the following grounds:

The Complainant lodged his WRC Claim Form on 11th December,2022.

Section 41 (6) of the Workplace Relations Act 2015 Was cited which provision states as follows:

“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”.

Accordingly, it was contended, the cognisable period for the Complainant’s claim is from 12th June 2022 until 11th December 2022. As was noted, the effective date of resignation is the 30th September 2022

Reliance was placed on the Labour Court decision in Tapastreet Ltd & Joseph MitchellDWT176

Noting that the Complainant’s claim was based on the entitlements provided for in Section 19 (1A) of the Organisation of Working Time Act 1997 (as amended), the Respondent contended that a worker including the Complainant, in order to have an entitlement to annual leave while on certified sick leave as provided by the Section,  must be able to demonstrate compliance with the requirements of S.19(1A). In this case, the Complainant must demonstrate that the medical certificate(s) relied upon were certificate(s) of a registered medical practitioner within the meaning of the Organisation of Working Time Act 1997 (as amended) i.e. within the meaning of Section 2 of the Medical Practitioners Act 2007.

The Respondent contended that such medical certificates as were submitted by the Complainant were not issued by a medical practitioner whose name was registered on the Register and that as a result, the Complainant had not met the statutory requirement to entitle him to annual leave for the period under review.

At the hearing, I directed further and more detailed submissions from the parties in relation to the issue of the definition of the term “Registered Medical Practitioner”.  The Respondent provided the following legal submission:

1. These submissions will address the following:

(a) Whether S.108 of the Medical Practitioners Act 2007 is appliable to the Organisation of

Working Time Act 1997 (as amended).

(b) If applicable, whether the definition of “registered medical practitioner” in S.19(1A) of

the Organisation of Working Time Act 1997 can be interpreted to include a medical

practitioner registered on a register other than the register established and maintained by

the Medical Council.

(a) S.108 of the Medical Practitioners Act 2007

2. It is submitted that S.108 is very clear in its scope. It states:

108.— (1) Every reference to a registered medical practitioner contained in any enactment

or any statutory instrument shall be construed as a reference to a registered medical

practitioner within the meaning of section 2.

(emphasis added)

3. It is respectfully submitted that the use of the terms “any” and “shall” put the issue beyond

doubt. There is no possible construction of the provision which would lead to a conclusion

that S.108 does not apply to S.19 (1A).

4. Put simply, the use of “any” ensures that all legislation is captured and the use of “shall”

ensures that the application of the definition is mandatory.

5. Therefore, the term “registered medical practitioner” in S.19(1A) of the Organisation of Working Time Act 1997 must be defined using the definition expressly provided in S.108 of the Medical Practitioners Act 2007.

(b) “Registered medical practitioner”

6. It is necessary to identify the scope of the term “registered medical practitioner” in order to determine if it can include a medical practitioner that is not registered with the Medical

Council (but is registered with another register).

7. “Registered Medical Practitioner” is defined in S.2 of the Medical Practitioners Act 2007 as

follows:

“Registered Medical Practitioner” means a medical practitioner whose name is entered

in the register.

“register” means the register of medical practitioners established under section 43 (1).

8. S.43(1) of the Medical Practitioners Act 2007 provides the following:

43.— (1) The Council shall establish and maintain a register to be known as the

register of medical practitioners.

(emphasis added)

9. The register in question, is therefore the register that is established and maintained by “The

Council”.

10. Put otherwise, and at the risk of oversimplifying the issue under consideration, a registered

medical practitioner, for the purposes of S.19(1A) of the Organisation of Working Time Act

1997 (as amended) is a person whose name is registered on the Register that is established

and maintained by The Council.

11. The next issue to consider is who or what is “The Council” as referenced in S.43 of the 2007 Act?

12. S.2 of the Medical Practitioners Act 2007 provides the following:

“Council ” means Comhairle na nDochtúirí Leighis or the Medical Council established

by the Act of 1978 and continued in being by section 4 (1).

13. “The Register” is therefore the register that is established and maintained by the Medical

Council.

14. The Medical Council was established under the Medical Practitioners Act 1978. The 1978

Act was repealed by the Medical Practitioners Act 2007 but the Medical Council was

continued and “carried over” by S.4 of the Medical Practitioners Act 2007.

15. For ease of reference, S.4 of the Medical Practitioners Act 2007 provides:

4.— (1) Notwithstanding the repeal of the Act of 1978 by section 3 —

(a) the body known as Comhairle na nDochtúirí Leighis, or in the English language as the

Medical Council, established by section 6 of that Act shall continue in being.

16. The question that falls for consideration is whether a doctor practicing in Poland and

registered in Poland (or any other country) could be deemed to be a “registered medical

practitioner” within the meaning of the 2007 Act (or more specifically, the Organisation of

Working Time Act 1997 (as amended)).

17. It is submitted that the legislative provisions are clear in their definitions and the interplay

between each is equally clear. To expand the definition of “Registered Medical Practitioner”

beyond a person registered on the Register that is established and maintained by the Medical

Council would lead to stark consequences. If this was to be the case, it would follow that the

Medical Council would have jurisdiction in relation to medical practitioners operating outside

of the State because “the Register” as defined in the Medical Practitioners Act 2007 would

have to mean something more expansive than the Register established and maintained by the

Medical Council. It would mean that the Medical Council could sanction a medical practitioner who was registered with, for example, the equivalent Polish Medical Council and was practising in Poland.

18. This is not the case and it is clear that the legislation which establishes the Medical Council

and provides the various powers under which the Medical Council acts, is limited in terms of

its reach. The legislative regime protects and safeguards members of the public in relation to

medical practitioners operating within the State only. It cannot and does not have jurisdiction

to sanction or discipline medical practitioners practising in other jurisdictions.

19. The territorial scope of the legislative regime outlined by the Medical Practitioners Act 2007 is confirmed by Madden in her textbook.

“A person cannot practise medicine in Ireland unless he or she is registered with the Medical Council. It is an offence to practise medicine within the State while unregistered, with the exception of administering first aid or visiting European Economic Area (EEA) registered doctors attending in an emergency. Section 41 of the 2007 Act also provides that certain designated titles may only be used by doctors; breach of this provision is a criminal offence.” REF Medicine, Ethics and the Law, Madden (4th ed.) Bloomsbury Professional

20. The legislation does facilitate and permit medical practitioners with qualifications outside of Ireland to practice in Ireland. However, and this is a point of importance, a medical practitioner from another jurisdiction must still register with the Medical Council to be permitted to practice in the State. A failure to do so would constitute an offence under S.37 of the Medical Practitioners Act 2007.

21. For ease of reference, S.37 provides:

S.37 - Subject to section 38 , an unregistered medical practitioner shall not—

(a) practise medicine, or

(b) subject to section 50 , advertise the practitioner’s services as a medical practitioner.

22. Therefore, the interpretation of S.43 of the 2007 Act is clear. The Register is defined with

reference to the Medical Council only. The legislation cannot be interpreted in any manner which could lead to a finding that a “registered medical practitioner” includes a medical practitioner registered on any other register other than the Medical Council.

23. Put otherwise, as a matter of fact and law, Dr Rafal Skotnicki (the medical practitioner who

provided the sick certs from Poland) is not permitted to practice medicine in Ireland because

he is not registered with the Medical Council. He is not a “registered medical practitioner” within the meaning of the Medical Practitioners Act 2007. He is in fact, an “unregistered

medical practitioner” within the meaning of the Medical Practitioners Act, 2007, which

unsurprisingly defines the term as follows: “unregistered medical practitioner” means a medical practitioner who is not registered.

(c) Conclusion

24. It follows, that the only Register that is of relevance for the issue under consideration is the Register established and maintained by the Medical Council.

25. The medical practitioner who provided the certificate to the Complainant, is not registered on the Register established and maintained by the Medical Council.

26. Consequently, he is not a “registered medical practitioner” within the meaning of, and for

the purposes of S.19(1A) of the Organisation of Working Time Act 1997.

Time Limits and Cognisable Period

The Complainant lodged his WRC Claim Form on 11th December, 2022. By operation of the basic six -month time limit imposed by Section 41 (6) of the Workplace Relations Act 2025 the basic limitation period is such that that any breach of the Organisation of Working Time Act 1997 falling within the six -month period immediately preceding the delivery of the Complaint for initiating these proceedings. Thus, the basic cognisable period applicable to this claim runs from the 12th of June 2022 until 11th of December 2022.

The six-month time limit can be extended pursuant to Section 41 (8) to a maximum period of twelve months from the date of presentation of the claim where the adjudicator is satisfied that the failure to present the claim within the six-month period was due to “reasonable cause”.

Although he did not make such an application in his submissions the Complainant at the hearing applied for the maximum extension of time to extend the cognisable period to twelve months from the date of presentation of the claim. The Complainant said that when he was making his claim, he didn’t know what he was supposed to do, and he was unaware of the limitation periods set out in the legislation. He contended that he was employed by the Respondent for 15 years during which time he gave good service. He contended that for his claim to be limited to the initial six-month cognisable period would be unfair. The Respondent opposed this application on the basis that no reasonable cause had been demonstrated by the Complainant.

In essence the Complainant relied on a lack of familiarity with the relevant legislation, and he urged that his length of service for the Respondent should also be taken into account. A lack of knowledge of the legislation cannot constitute reasonable grounds where the relevant legislation is promulgated and readily accessible to the public at large. Length of service of itself has no bearing on the issue of time constraints for the presentation of the claim and cannot constitute reasonable cause for failing to do sooner. In such circumstances I am constrained by the parameters of the Section 41 subsection (8) and I am not satisfied that the failure to present the claim prior to the 12th of December 2022 was due to reasonable cause and I must therefore refuse the Complainant’s application for an extension of time.

In the light of the above finding the cognisable period is limited to any breaches of the Organisation of Working Time Act which may have occurred within the period from the 12th June 2022 until 11th December 2022 which, given the date of resignation of the Complainant, reduces itself to the period from the 12th of June 2022 until the 30th of September 2022 – the date of the resignation.

The Requirements of Section 19 (1A) of the Organisation of Working Time Act 1997 (as amended) in relation to Certificates Provided

The Complainant did not actually work during the period 12th of June 2022 to 30th of September 2022 and in effect his entitlement to paid leave falls to be dealt with by reference to Section 19 (1A) of the Organisation of Working Time 1997 as amended by Section 86(1) of the Workplace Relations Act 2015. The relevant provision states as follows:

“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.”

It was accepted that the Complainant was absent due to illness during the cognisable period. Further although not accepting that all the certificates had been received, the Respondent agreed to approach the matter for the purposes of the hearing on the basis that certificates had been received covering this period of absence. However the Respondent contended that those medical certificates were issued by the Complainant’s orthopaedic surgeon in Poland who is not registered in Ireland. The Respondent contended that Section 19 (1A) requires a certificate from a “registered medical practitioner” which term is not defined anywhere in the Organisation of Working Time Act 1997 as amended. This being the case, the Respondent relied on the definition of that term by reference to the Medical Practitioners Act 2007. Following the hearing I directed written submissions on this issue. The Respondent delivered submissions and the Complainant was afforded the opportunity to respond but did not do so.

A legal submission was delivered on behalf of the Respondent drafted by Mr. Brian Hallissey B.L, the detailed and comprehensive terms of which are quoted in full above. Having considered that submission and there being no reply to same from the Complainant, I find as follows: 

Section 19 (1A) requires an employee seeking the benefit of the provision, to furnish medical certificates to his/her employer.

Section 19 (1A) provides that the certificates must be from a “Registered Medical Practitioner” which term is not defined in Section 19A or in any other part of the Organisation of Working Time Act 1997 (as amended). 

The Term “Registered Medical Practitioner” is defined in the Medical Practitioners Act 2007 and means in effect a medical practitioner whose name is entered in the register; “register” means the register of medical practitioners established under section 43 (1) of that Act. This register is limited to medical practitioners registered and practicing within the jurisdiction of the Irish State. Thus, any practitioner who is not registered and practicing within the jurisdiction of the Medical Council, i.e. within the Irish State, is not a “Registered Medical Practitioner” for the purposes of the Medical Practitioners Act 2007.

Section 108 of the Medical Practitioners Act 2007 states that the definition of “Registered Medical Practitioner” in that Act is applicable to all enactments or statutory instruments. It thus follows that the definition is applicable to the Organisation of Working Time Act 1997.

The medical certificates submitted by the Complainant were issued by his doctor in Poland. This doctor is not entered on the Register created by the Medical Council of Ireland pursuant to Section 43 of the Medical Practitioners Act 2007 and thus that doctor is not a “Registered Medical Practitioner” for the purposes of that Act and by virtue of the extension of the definition of “Registered Medical Practitioner” in Section 108 of the same Act, the Complainant’s doctor was not a “Registered Medical Practitioner” for the purposes of Section 19 (1A) of the Organisation of Working Time Act 1997 (as amended).

For the reasons set out above, I find that the Complainant is not entitled to the benefit of Section 19 (1A) of the Organisation of Working Time Act 1997 (as amended) and that the Complaint is not well-founded.  

CA-00054095-001 - claim pursuant to section 27 of the Organisation of Working Time Act 1997 - the complaint is not well-founded.

Organisation of Working Time Act 1997 – Time Limits - Workplace Relations Act 2015 - Section 41 (6) – Section 41 (8) - Tapastreet Ltd & Joseph Mitchell DWT176 – Extension of Time - Reasonable Cause Not Shown - Organisation of Working Time Act 1997 (as amended by Workplace Relations Act 2015 Section 86(1))  – Section 19 (1A) – Definition of “Registered Medical Practitioner” - Medical Practitioners Act 2007 – Sections 2, 4, 6, 37, 38, 41, 50 and 108 – Certificates from “Registered Medical Practitioner” not provided