Complainant

Respondent

Parties

Aliaksandr Svirydau

Grove Island Management Company

Representatives

  Self-Represented

 Mr R Mulcahy, HR Consultant.

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-00060279-001

28/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00060279-002

28/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00060279-003

28/11/2023

The Complainant is employed as a Commercial Assistant by a Property Services Company. The Employment began on the 1st March 2017 and continues. The gross pay is €936 per fortnight for a 39-hour week.

He made three complaints, namely that he had not received proper Public Holiday leave, Standard Annual leave and Sunday Premium payments dating back to the commencement of his employment in 2017.

While his employment remained with Grove Island Commercial at all times the Management Company engaged by the Respondent had changed in February 2023.

It was acknowledged in opening discussion that all of the issues of complaint (to the 1st January 2023) had been resolved by the new Management Company.

The Complaint was now regarding the period from 2017 to 1st January 2023.

1:1         CA-00060279-001 – Public Holidays

The Complainant, giving evidence under Oath, was rostered for all Public Holidays since beginning in 2017. He received no time in lieu or other compensatory payments. It was his estimate that he was due 30 days pay in lieu. € 2,800 requested.

1:2        CA-00060279-002 – Sunday Premium

The Complainant estimated that he was due a lump sum of € 1,350.

1:3       CA-00060279-003 – Annual Holidays

In the period from 01/03/2017 to 31/12/2022 the Complainant maintained that he was left short some 85 days holidays – to the value of € 7,720.

He maintained that the Employer always told him that there were “cover issues” and he could not take his full holidays. In addition, he maintained that when he was on Annual leave the Employer always deducted 7 days per week off instead on 5 days per week. 

The former Administration Representatives (2017 to end 2022) did not attend the Hearing. There was no contra evidence presented. The new Administrators pointed out that it was before their time on the Contract and they had no involvement.

No leave or Payroll records for the contested period were produced.

Mr Mulcahy, Consultant for the new Administrators, did indicate that this pre 2023 issue would have to be part of a discussion with the Principal owners.

3:1        CA: 00060279-003

Reckonable periods and Annual Leave/ European Law

3:1:1       Working Time Directive

Article 7 of the Working Time Directive (2003/88/EC and its predecessor Directive 93/104/EC) sets out the entitlement to paid annual leave. It states:

‘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 terminated.’

Sections 19, 20 and 23 of the Irish Organisation of Working Time Act ,1997 transposed this provision into Irish law.

Article 31 Charter of Fundamental Rights

Article 31 of the Charter on Fundamental Rights of the European Union addresses annual leave. It provides:

‘Fair and just working conditions

1.   Every worker has the right to working conditions which respect his or her health, safety and dignity.

2.   Every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave.’

3:1:2        Interpretation of the Court of Justice of the European Union

The Court of Justice of the European Union (the ‘CJEU’) has made several significant decisions that touch on the carry-over of annual leave. As noted by the Irish High Court in Royal Liver v Macken [2002] 4 IR 427 the starting point is that the right to paid, unconditional annual leave is a ‘fundamental social right’. This is now reflected in the Charter of Fundamental Rights.

King v The Sash Window Workshop Ltd C-214/16

In King v Sash Window, the employee claimed 13 years of paid annual leave that he had been prevented from taking over the course of his employment. The employer had not paid annual leave as it treated the employee as being self-employed and not an employee.

At paragraph 65, the CJEU concluded

‘Article 7 of Directive 2003/88 must be interpreted as precluding national provisions or practices that prevent a worker from carrying over and, where appropriate, accumulating, until termination of his employment relationship, paid annual leave rights not exercised in respect of several consecutive reference periods because his employer refused to remunerate that leave.’

Max-Planck-gestelleschaft zur Forderung der Wissenschaften eV v Shimizu C-684/16

In Max-Planck, the Leave could be paid in lieu where the employment had terminated. In this case, the employee claimed 51 days of annual leave accruing in 2012 and 2013 (his employment ceased on the 31st December 2013).

The CJEU reaffirmed the position set out in preceding judgments that Article 7 did not preclude a national provision that resulted in an employee losing their entitlement to annual national law in question provided that annual leave must be granted and taken in the course of the leave year; otherwise, it lapsed unless carried over under the terms of the provision.

Citing the employee as being the “weaker“ party in the employment relationship, paragraphs 43 to 47 of the judgment refer to the burden resting on the employer to ensure that the employee had the opportunity to take paid annual leave.

At paragraph 46, the Court held. 

“Should the employer not be able to show that it has 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 Directive 2003/88.’

The Court concluded that a national court hearing a complaint must

‘ensure that, should the employer not be able to show that it has exercised all due diligence in enabling the worker actually to take the paid annual leave to which he is entitled under EU law, the worker cannot be deprived of his acquired rights to that paid annual leave or, correspondingly, and in the event of the termination of the employment relationship, to the allowance in lieu of leave not taken which must be paid, in that case, directly by the employer concerned.’

3:1:3       Discussion of EU jurisprudence

In Adj -00019188 the Adjudication Officer, Mr Baneham, set out in detail the evolving jurisprudence of the CJEU and the Irish courts in respect of the right to paid annual leave emanating from the Directive and the Charter.

In Sash Window, the CJEU was clear to demarcate situations where the employee could not attend work on fitness grounds from those where the employee continued to work and where ‘the employer was able to benefit, until Mr King retired, from the fact that he did not interrupt his professional activity in its service in order to take paid annual leave.’ 

The CJEU further held

 ‘unlike in a situation of accumulation of entitlement to paid annual leave by a worker who was unfit for work due to sickness, an employer that does not allow a worker to exercise his right to paid annual leave must bear the consequences.’

In Sash Window, the CJEU concluded that any national provision which prevented an employee being paid at the end of their employment for leave carried over several consecutive reference periods was precluded where ‘his employer refused to remunerate that leave.’

In Max-Planck, the CJEU held that it was for the employer to show it had exercised ‘all due diligence’ to ensure that the employee is enabled to take paid annual leave, and this includes the payment of an allowance in lieu of annual leave not taken.

Overall, the CJEU cited that the burden lay on the employer to ensure that the employee was actually given the opportunity to take paid leave, including informing the employee ‘accurately and in good time’ that the leave could lapse.

The thread of CJEU jurisprudence is that in cases other than long sickness absences, the onus is on the employer to ensure that the employee can actually avail of annual leave. The employer must exercise all due diligence in ensuring that leave is taken.

The jurisprudence centres on the employee being the “weaker” party in the employment relationship. In this case Language and little familiarity with Irish Law were also relevant.

The right to annual leave draws both from the Directive and the Charter of Fundamental Rights. It is a fundamental social right. Where the employer has not met the burden of due diligence, EU law precludes a national provision that seeks to limit the accrual of annual leave or the payment of the allowance in lieu. Where carried over annual leave is to lapse, this situation must be accurately conveyed to the employee and in a timely fashion. Sash Window addressed leave going back 13 years. The CJEU did not limit the purview of the claim, despite being invited to do so.

3:1:4        Applicability to current case.

From the case law of the CJEU it is now clear that the right to take Annual leave is “Fundamental”. It is also clear that national provisions seeking to limit this right or in this case to preclude payment in lieu after the event have to be treated very carefully.

In this case the Complainant was never afforded the opportunity to take his leave due, he stated due to “Cover Reasons”. The European view of the “Weaker party” being the Complainant is also relevant.

Accordingly, in view of the cited CJEU judgements , the Adjudication view has to be that the Complainant is due redress for the untaken days.

As the then, now former, Administration did not offer any evidence, the sworn testimony of the Complainant has to carry weight.

Redress has to be made for the untaken days.

3:2        CA-00060279-002 – Sunday Premium

The evidence presented here was unclear. The rate was stated to include a 5% Sunday Premium.

More importantly the provisions of section 41 (6) of the Workplace Relations Act 2015 apply here. It is not an issue, like statutory Annual Leave, directly covered by European Law.

Accordingly, the complaint cannot be seen as Well Founded and has to be deemed to fail.

3:3        CA-00060279-001 – Public Holidays

The issue here was the redress given to the Worker for Public Holidays. Again, the distinction is with Statutory Annual Leave and the CJEU.

The European Case Law considered above does not specifically refer to Public Holidays.  The provision of Section 41 (6) of the Workplace Relations Act,2015 must apply. In the reckonable period, back to 28th May 2023, all public Holidays were paid.

Accordingly, the complaint is not Well Founded and Fails.

Annual Leave, Sunday Premium, Public Holidays, Time Limits.