FULL DECISION
SECTION 44, WORKPLACE RELATIONS ACT 2015 SECTION 28 (1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES: CARLOW COUNTY COUNCIL (REPRESENTED BY LGMA) AND MR BRENDAN DOWLING (REPRESENTED BY SIPTU) DIVISION:
Appeal of Adjudication Officer Decision No's: ADJ-00035191 (CA-00046249-001).
The Worker appealed the Adjudication Officer's Decision to the Labour Court on 9 February 2023. A Labour Court Hearing took place on 18 January 2024. The following is the Labour Court's Determination: DECISION: This matter comes before the Court as an appeal by Brendan Dowling (the Appellant) of a decision of an Adjudication Officer (CA-00046249-001) given under the Organisation of Working Time Act 1997 (the Act) in his complaint against Carlow County Council (the Respondent). The Adjudication Officer found that the complaint was not well founded. Factual background. The Appellant alleges that the Respondent has undercalculated payment to him for Annual Leave throughout the period of his employment. He contends that the Respondent has failed to include regular rostered overtime which he works in the calculation of his pay during annual leave. He also seeks to have the calculation of pay for annual leave include an on-call payment which he receives two weeks out of four reflecting the fact that he is on call two weeks out of four. The Appellant is seeking retrospective payment of the shortfall. The Appellant in oral submission at the hearing sought retrospection to 2010 and in his written submission sought retrospection to March 2012. The Council has included regular and rostered overtime in the calculation of pay for annual leave since 1st September 2021. Consequently, the within complaint insofar as it relates to calculation of pay for annual leave to include regular and rostered overtime, is related to retrospective calculation rather than any ongoing issue as regards the inclusion of regular and rostered overtime in the calculation of pay for annual leave. The Complainant referred his complaint to the Workplace Relations Commission on 15th September 2021 and, therefore, according to the Act, the cognisable period for the within complaint is 16th March 2021 to 15th September 2021. The Appellant was on annual leave on seven occasions for one day each between 16th March and 15th September 2021; one of those occasions postdated the new calculation arrangement for annual leave implemented on 1st September 2021. It appears to be common case that, in the period, he was on-call every second week for a week at a time. Summary of the Appellant’s Submission The Appellant’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 2012 re-calculated at a rate of pay that includes his regular and predictable overtime and his on-call allowance. Summary of the Respondent’s Submission The Respondent submitted that the CJEU jurisprudence relied on by the Appellant relates only to the statutory element of his annual leave entitlements and, furthermore, 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. The Respondent submitted that this Court, in a range of decisions, had decided identical points of law in appeals made against it and a range of other County Councils. Discussion and Conclusions This Court has given detailed consideration in a number of recent decisions to the issues that fall for consideration in this appeal. In WTC 23/22 [DWT2328] Kilkenny County Council v Brian McEneaney this Court, citing with approval its own decision in WTC22/91 [DWt2312] Waterford City and County Council v Michael Malone, found as follows: “In DWT2312, dated 29 June 2023, this Court held as follows: “The 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 this Court in DWT2312 to the facts of the within appeal, the Court finds that the element of the claim that seeks full retrospective recalculation of the Complainant’s annual leave entitlements back to 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”. This Court adopts the reasoning in WTC 23/22 and concludes, by application of that reasoning, that the Appellant is entitled to have payment of his statutory annual leave in the cognisable period for the within complaint, 16th March 2021 to 15th September 2021, calculated having regard to his normal and predictable overtime plus his on-call allowance. Decision. The Court orders that this calculation be applied to the annual leave taken by the Appellant during the cognisable period for the within complaint. In addition, the Court awards compensation in the amount of €750 to the Complainant for the breach of the Act. The decision of the Adjudication Officer is set aside, and the appeal succeeds. The Court so decides.
| ||||||||||||||||||
