Complainant

Respondent

Parties

Emma  Keane

Midlands Simon Community Clg

Representatives

Self-Represented

Self-Represented

Act

Complaint 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-00060954-001

11/01/2024

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

CA-00060954-002

11/01/2024

The Complainant commenced employment with the Respondent on 8th August 2008. The Complainant was a permanent, full-time member of staff, in receipt of an average weekly wage of €1,038.46. At all relevant times the Complainant role was described as that of “manager”. The Complainant resigned her contract of employment on 13th July 2023.

On 11th January 2024, the Complainant referred the present set of complaints to the Commission. Herein, she alleged that the Respondent failed to discharge her accrued and unpaid annual leave on the termination of her employment. In addition to the foregoing, the Complainant submitted that she frequently worked in excess of 48 hours per week, in contravention of the Act.

A hearing in relation to this matter was convened for, and finalised on, 20th May 2024. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced during the hearing.

The Complainant issued an extensive submission in advance of the hearing. While the Respondent issued no written submission in advance of the hearing, they issued a verbal response to the allegations raised by the Complainant. At the outset of the hearing, the Respondent requested that the matter be adjourned as they were unaware of the hearing itself until a few days prior to the same. In circumstances whereby the notice of hearing was issued to the correct address, this application was denied and the matter proceeded as scheduled. 

By submission, the Complainant stated that she did not receive her full annual leave entitlement on the termination of her employment. In this respect, the Complainant stated that since the imposition of the restrictions arising from the Covid-19 pandemic, she had little opportunity to take any annual leave in her role. Given that the Complainant had an annual leave entitlement of 25 days per year, with an additional 2 concessionary days, she calculated her outstanding annual leave entitlement at 85 days, to the value of €17,653.65 on the termination of her employment.

In the months following the termination of her employment, the Complainant was in continuous correspondence with her former employers in relation to this issue. Following numerous communications on this issue, the Respondent discharged the sum of €12,798.31, in various instalments, in respect to the Complainant’s outstanding annual leave. Having regard to the foregoing, the Complainant submitted that she was entitled to a further payment of €4,945.34 in respect of annual leave that had accrued but was not discharged on the termination of her employment.

In addition to the foregoing, the Complainant submitted that she would routinely work in excess of 48 hours per week in the normal course of her duties.  In this regard, the Complainant submitted that she entered into an ostensibly temporary agreement with the former employer to work a standard 48 hour week in October 2020. As mattes transpired, this agreement was not temporary and remained in place until the end of the Complainant’s employment. In addition to the foregoing, the nature of the Complainant’s role is such that she would be required to attend to the Respondent’s centres to respond to various emergencies that might arise. In evidence, the Complainant outlined that such a call out might involve an hours’ journey to the centre in question, dealing with the issue that had occurred, including waiting for ambulances and medical personnel, and travelling home. Such call outs would routinely occur out of hours and had the result of increasing the Complainant’s weekly working hours beyond 48. Given the nature of the Complainant’s role, and the Respondent’s activities, the Complainant was obliged to respond to each of these issues as they occurred. In evidence, the Complainant submitted that these call outs were far from isolated incidents,  and would sometimes occur multiple times in the same week.

By response, the Respondent stated that they were aware of the issue regarding the Complainant outstanding annual leave, and that they had taken steps to rectify the same. In addition to the foregoing, they submitted that the issue in respect to the weekly working hours was regrettable, but unavoidable given the nature of the Respondent’s activities. In this regard, the Respondent submitted that the issues at hand ultimately arose from issues regarding the funding of the Respondent and the difficulties experienced by the Respondent in achieving the goals of the organisation given the increase in demand for their service coupled with a challenging funding model.

Regarding the present case, the Complainant has alleged two separate breaches of the impleaded Act. The first such breach relates to the alleged non-payment of outstanding annual leave on the termination of the Complainant’s employment, in contravention of Section 23 of the Act. In this regard, the Complainant has alleged that she was in the clearly unfortunate position whereby she routinely could not avail of annual leave for a number of years prior to the termination of her employment. In this regard, the Complainant meticulously set out her calculations in relation to the same and submitted that she had accrued an entitlement to 85 days annual leave on the termination of her employment. While the Respondent appeared to agree that the Complainant had accrued annual leave over several years, they verbally submitted that they had made a significant payment to the Complainant in relation to the same.  

The matter of accrual of annual leave has been the subject of much consideration in recent times. In the matter of Kreuziger v Land Berlin C-619/16 the CJEU held as follows,

‘…it cannot be inferred from the Court’s case-law mentioned in paragraphs 30 to 33 of the present judgment that Article 7 of Directive 2003/88 should be interpreted as meaning that, irrespective of the circumstances underlying the worker’s failure to take paid annual leave, that worker should still be entitled to the right to annual leave referred to in Article 7(1), and, in the event of the termination of the employment relationship, to an allowance by way of substitution therefor, pursuant to Article 7(2).’

Later, at paragraph 42,

‘…the Court has in particular held that Article 7(1) of Directive 2003/88 does not in principle preclude national legislation which lays down conditions for the exercise of the right to paid annual leave expressly conferred by the directive, including even the loss of that right at the end of a leave year or of a carry-over period, provided, however, that the worker who has lost his right to paid annual leave has actually had the opportunity to exercise the right conferred on him by the directive.’

And at paragraph 52,

‘…the employer is in particular required, in view of the mandatory nature of the entitlement to paid annual leave and in order to guarantee the effectiveness of Article 7 of Directive 2003/88, to ensure, specifically and transparently, that the worker is actually given the opportunity to take the 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 procuring 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, or upon termination of the employment relationship where the termination occurs during such a period.’

In the matter of Legal Aid Board v Theresa McAteer, DWT 2318, the Labour Court found annual leave accrued in circumstances whereby,

“…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.”

Regarding the present factual matrix, it is apparent that the Respondent has accepted that the Complainant’s arguments in respect to the accrual of annual leave. In this regard, the Complainant calculated her outstanding annual leave entitlement ay 85 days, to a value of €17,653.65. Following numerous discussions in relation to the same, the Respondent issued payment of €12,798.31, clearly indicating that they accept the an entitlement to annual leave accrued over the Complainant’s employment. In this regard, the Complainant submitted that the sum of €4,945.34 in respect of unpaid annual leave entitlement remains to be discharged in accordance with Section 23.

By submission, the Complainant set out in admirable detail the amount of annual leave accrued and set out with precision the financial equivalent of the same. The Complainant’s calculations in this regard were based on an annual entitlement of 27 days, 25 of which arose from contractual annual leave, with a further 2 concessionary days.

In the matter of Terveys-Ja Sosiaalialan Neuvottelujargesto (TSN) ry v Hyvinvointialan liito Ri C-609/17 and C-610/17, (referred to hereafter as “TSN”) the CJEU held that,

“…rights to paid annual leave thus granted beyond the minimum required by Article 7(1) of Directive 2003/88 are governed not by that directive, but by national law, outside the regime established by that directive”

In the matter of Tapastreet Limited -v- Joseph Mitchell WTC/16/87 the Labour Court held that once a Complainant had received their statutory entitlement, no claim arose under the Act regarding a contractual agreement in excess of the same.

In considering the authorities cited above, under the Directive, and by extension the impleaded Act, the Complainant is entitled to recover 20 days of statutory annual leave per annum. In circumstances whereby the Complainant submitted that she had accrued ten days of annual leave entering into 2020, she stated that her total entitlement was 105 days. However, by virtue of the Act, the Complainant would accrue 20 days annual leave per year, creating an entitlement of 80 days, in addition to the 10 accrued previously, to a total of 90 days. Given that it is common case that the Complainant availed of 20 days annual leave during this time, her statutory entitlement on termination is 70 days. By submission, the Complainant estimated her annual leave entitlement as being the equivalent of €207.69 per day. By these estimations, the Complainant’s outstanding annual leave entitlement on the termination of her employment is €14,538.30. In circumstances whereby the Respondent discharged the sum of €12,798.31 in respect of these outstanding entitlements, I find that the Complainant has been underpaid by the sum of €2,039.99 in respect of annual leave that had accrued but remained unpaid on the termination of her employment. In consideration of the accumulation of foregoing points, I find that this complaint is well-founded, and the Complainant’s application succeeds.

Regarding the second complaint, the Complainant alleged that she routinely worked in excess of 48 hours per week. While the Respondent did not concede this point directly, they accepted that the Complainant normally worked 48 hours per week and that the Complainant would occasionally be obliged to work in excess of her normal working hours.

In this regard, Section 15 of the Act provides that,

“An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereinafter in this section referred to as a “reference period”) that does not exceed

(a)     4 months, or

(b)    6 months”

In the matter of IBM Ireland -v- Svoboda DWT 18/2008, the Labour Court noted as follows,

“It is noteworthy that the section provides that an employer shall not ‘permit’ an employee to work in excess of 48 hours per week.  The obligation created by the Act is, therefore, directed at preventing an employee from working excessive hours and not merely at prohibiting an employer from instructing or requiring an employee to work more than the permitted hours.  It further appears from the language of the Section that it imposes a form of strict liability (it does not provide that an employer may not knowingly permit). This construction of the Section is consistent with the object pursued by Directive 93/104/EC, which the Act transposed into Irish law.  That objective, as stated in Article 1 of the Directive, is to lay down minimum safety and health requirements for the protection of those at work.”

Regarding the instant matter, it is common case that the Complainant’s standard working week was 48 hours. While this is not of itself a breach of the Act, such an agreement has the consequence of placing the Respondent in breach of Section 15 in the event that the Complainant works in excess of her standard hours at any time. The Complainant’s evidence in this regard was that she routinely and frequently worked in excess of these hours, usually by a significant period. In this respect, it is further noted that the Respondent is obliged by the Act to retain records in order to rebut the assertions of the Complainant. In circumstances whereby no such records were placed into evidence, I prefer the evidence of the Complainant and find that the complaint is well-founded.

CA-00060954-001 Complaint under the Organisation of Working Time Act

I find that the complaint is well-founded. Having regard to the totality of evidence presented, I award the Complainant the sum of €2,039.99 in respect of annual leave that had accrued but remained unpaid on the termination of her employment. In addition to the foregoing, I award the Complainant the sum of €500 in compensation for the breach of the Act. For the avoidance of doubt, the total award under this section is €2,539.99.

CA-00060954-002 Complaint under the Organisation of Working Time Act

I find that the complaint is well-founded. Regarding redress, it is noted that in Svoboda, cited above, the Court, when assessing redress found that,

“…the breach was technical and non-culpable in nature and that the Claimant was herself primarily responsible for what occurred.”

In such circumstances, the Court declined to make any award as to compensation.

Regarding the present case, the factual matrix may be easily distinguished from the matter cited above. In this respect, no evidence was provided of the Respondent’s efforts to prevent the Complainant from working excessive hours, indeed it appears that they entered into an agreement that all but ensured a breach Section 15. In addition to the foregoing, it is apparent that the breaches in question are not minor or technical in nature, but involved the Complainant driving significant distances following the completion of the maximum weekly working hours permitted by the Act. Such a regime clearly represents a danger to the Complainant’s health and safety and is far from a technical breach of the Act. Having regard to the foregoing, I award the Complainant the sum of €2,500 in compensation for the breach of the Act.

Excessive Weekly Working Hours, Accrued Annual Leave, Tapastreet