Complainant

Respondent

Parties

Michael  Hogan

 An Garda Síochána

Complainant

Respondent

Anonymised Parties

{text}

{text}

Representatives

  Self-Represented

Desmond Ryan, B.L., instructed by the Chief State Solicitors Office

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-00053744-001

16/11/2022

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The evidence was not contested by either party and accordingly, it was not necessary to administer the oath or affirmation in the circumstances of this case.

The complainant submitted that his complaint concerns 79 days untaken annual leave for payment on termination of his employment following his retirement from An Garda Síochána and his entitlement to that payment under the Organisation of Working Time Act, 1997.

The complainant submitted that he is a retired member of An Garda Síochána. He was due to retire on grounds of age, having reached 60, in August 2021. He was granted an extension of service for one year by the Commissioner and retired with the rank of Sergeant from An Garda Síochána in August 2022. On the date of his retirement, he had accrued 79 untaken annual leave days. He applied to have these untaken leave days paid and permission to have them paid was granted. The complainant submitted that it was at all times accepted and acknowledged by the respondent that the 79 days were due and were to be paid. The complainant subsequently received a payment of less than he expected. When he queried it, he was told that he had been paid for 79 untaken annual leave days and that the divisor used was 7, which gave 11.29 (79 divided by 7) weeks’ pay.

The complainant submitted that this complaint relates to the calculation of payment of accrued annual leave. The complainant was conditioned to work 12-hour shifts from March 2020 to the date of his retirement. During that period, any day he took off as annual leave was for a 12-hour tour of duty. Therefore the 79 days of untaken leave amounted to 948 hours (79 X 12), which divided by 40 hours in a working week equals 23.7 weeks of pay due. As he was only paid 11.29 weeks, he was left short 12.41 weeks’ pay for untaken leave.

The complainant submitted that his pay on retirement was €1177.71 per week. A pay increase of 3% was backdated to 02/02/2022, and a 1% increase from 01/10/2022, as it came within 3 months of his retirement, and therefore must be added to this weekly figure.  Therefore, his weekly pay for calculations is €1224.82 (€1177.71 X 1.04).  As he was only paid 11.29 weeks, he was left short 12.41 weeks’ pay for untaken leave. The amount due is €15,200.02 (€1224.82 X 12.41 weeks).

The complainant submitted that the sixth schedule of the Organisation of Working Time Act is listed Directive 93/104/EC. This was replaced by Directive 2003/88/EC.

 “DIRECTIVE 2003/88/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 4 November 2003 concerning certain aspects of the organisation of working time..

Article 7

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.”

The complainant submitted that as can be seen from Article 7(1) above, it states, “every worker”. It does not exclude members of An Garda Síochána.  Article 17 of Directive 2003/88 provides that Member States may derogate from certain provisions of that directive. However, no derogation is permitted in respect of Article 7 of the directive. Therefore, a member of An Garda Síochána cannot be excluded by any National law. Under Article 7(1) also a worker is entitled to at least 4 weeks paid annual leave, therefore the 34/35 days per annum a Garda was entitled to by condition and practice is what is relevant in this case and the 79 days of unpaid leave due should be paid as outlined below. When the complainant Hogan retired, he became a civilian and therefore his claim is as a civilian against his former employer. Therefore, the claim of members of an Garda Síochána being denied under the Organisation of Working Time Act 1997 is null and void in any event and in particular in this case.

The complainant cited Para.39 of the European Court judgement in the case of Stadt Wuppertal v Maria Elisabeth Bauer  (C‑569/16) and Volker Willmeroth  v  Martina Broßonn  (C‑570/16) of the states: “….for the duration of the annual leave within the meaning of that directive, the worker’s remuneration must be maintained. In other words, workers must continue to receive their normal remuneration.”  H noted that hhis indicates that the payment for the untaken leave of 12 hours per leave day should be at the same rate of pay i.e. normal remuneration, hence the claim for 948 hours (79 X 12), which divided by 40 hours in a working week equals 23.7 weeks of pay due. The complainant was only paid for 11.29 weeks, he was left short 12.41 weeks’ pay for untaken leave. The amount due is €15,200.02 (€1224.82 X 12.41 weeks).

As a preliminary matter, the respondent submitted that the complainant’s employer was, at all material times, An Garda Síochána.

The respondent noted that Section 3 of the Organisation of Working Time Act expressly excludes An Garda Síochána from its scope. However, it also noted that without prejudice to that position, the respondent’s approach to the payment of annual leave fully complies with sections 19 and 20 of the 1997 Act and with the provisions of the Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997 (S.I. No. 475 of 1997).

The respondent submitted that quite apart from the foregoing, the respondents’ core position on the substantive complaints is that the complainant’s case, apparently relies upon a mistaken interpretation of both the Working Time Directive 2003/88/EC (‘the Directive’) and the Organisation of Working Time Act 1997 (‘the 1997 Act’), leading him to advance a flawed argument as to the appropriate calculation to be applied when calculating paid annual leave entitlements.

The respondent submitted that the essence of the complaint appears to be that, for the purpose of calculating annual leave, a day should be broken into hours and pay calculated according to those hours. The respondent emphatically rejected this contention as having no basis in law.

The respondent submitted that Section 23 (1)(a) of the 1997 Act provides that:

“Where— (i) an employee ceases to be employed, and (ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee, the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave.”

The respondent submitted that the import of this provision has been fully complied with exceeded in this instance. The respondent noted that specifically, the crucial issue in this case is the definition of ‘annual leave’ as used within An Garda Sióchańa which differs from that in either the Directive and the 1997 Act. Within An Garda Síochána, the applicable working model was a four day on, four day off model with the amount of annual leave provided being significantly more leave that required by the Directive, and therefore the leave entitlements enjoyed by the complainant far surpassed those required by the Directive (being only 20 days).   The respondent submitted that it is settled law that the Workplace Relations Commission has no jurisdiction to deal with complaints regarding extra-statutory leave: and cited the recent decision of the Labour Court in Carlow County Council v Coughlan (DWT2228, 12 July 2022) in support of its contention.

The Labour Court decision in Carlow Co. Co v Coughlin as cited by the respondent is instructive when it comes to considering a payment in respect of annual leave not taken.  It is useful to outline the Courts deliberations in its decision and a large portion of it is replicated below:

“Statutory Time Limit

As stated previously, the Complainant referred his complaint under the Act to the Workplace Relations Commission on 8 March 2021. As his claim relates to the calculation of payment for annual leave (as opposed to the granting of annual leave), in the Court’s judgment, the cognisable period covered by the claim – having regard to section 41(6) of the Workplace Relations Act 2015 - is the period 9 September 2020 to 8 March 2021. It is also the Court’s judgment that none of the cases cited by the Complainant are authority for the Court assuming, on the facts of the within appeal, an enlarged temporal jurisdiction over and above that specified by the Oireachtas.

For the avoidance of doubt, the Court fully accepts the Respondent’s submission that the judgments in Sash Windows and in Agnew, respectively, for the reasons stated, do not support the Complainant’s submission that this Court – were it to uphold the substance of his claim that overtime payment should be included in the calculation of payment for annual leave – can award redress retrospective to the date of commencement of his employment in 1999.

…

The Court’s Jurisdiction Confined to Statutory Annual Leave

The within appeal is before the Court under the Organisation of Working Time Act 1997. The Act provides, inter alia, for an entitlement to a minimum period of annual paid leave, calculated in accordance with section 19 of the Act. The Complainant’s statutory annual leave entitlement is twenty days. He has a further contractual entitlement to five days’ leave annually. In dealing with a claim brought under the Act, the Court has no jurisdiction per se with regard to a complainant’s extra-statutory leave.

Calculation of Payment for Statutory Annual Leave

The Organisation of Working Time Act 1997 was enacted to give effect to Directive 93/104/EC of 23 November 1993 of the Council of the European Communities which delegated to the Member States of the European Union the right to determine all aspects of holiday pay, including its calculation. The Directive left it to national legislation to determine the conditions of entitlement to, and granting of, an employee’s paid annual leave, including the determination of the basis upon which payment is calculated for such periods of leave and the level of such payment.

Section 19(1) of the Act provides for the calculation of statutory annual leave as follows:

“(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.”

Of particular reference to the within complaint is the phrase “In dealing with a claim brought under the Act, the Court has no jurisdiction per se with regard to a complainant’s extra-statutory leave.”

The complaint before me relates to accrued leave at the end of the complainant’s service.  It does not detail any breach of the Act, or of the Directive for that matter, where the complainant was not accorded his statutory leave.  Following on from the Labour Court’s decision, whereby the Court’s judgment is … “confined also to considering the calculation of payment for statutory annual leave only”. I find that I have no jurisdiction to consider the complainant’s extra statutory leave.

Having regard to the foregoing, has not put forward any detail regarding a denial of statutory leave entitlements. I find that the complaint is not well founded and that the Act has not been contravened. 

Having regard to all the written and oral evidence presented in relation to this matter, my decision is that the complaint is not well founded and that the Act has not been contravened.

Organisation of Working Time Act – European Directive 2003/88/EC – Annual Leave – extra statutory leave – complaint not well founded