Complainant

Respondent

Parties

Nicola Nixon

Oberstown Children Detention Campus

Representatives

Louise O’Hara, Fórsa  

Patrick Watters, Beauchamps Solicitors

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-00066071-001

17/09/2024

The complainant worked as a residential social care worker with the respondent from January 1997 until she retired in December 2021.  Late in 2023, the respondent had to deal with a discrepancy related to the annual leave entitlement of all its employees.  A government circular issued in April 2011 provided that civil servants were entitled to two additional days’ holidays while, at the same time, privilege days were eliminated.  Rather than their contractual entitlement to 21 days’ holidays a year, the effect of the circular meant that the respondent’s employees were entitled to 23 days’ holidays per year.

In December 2023, the respondent began to make arrangements to address the discrepancy in their employees’ holiday entitlement, going back to 2011.  The complainant had been retired since December 2021 and, on December 15th 2023, she contacted the HR department to enquire about how she would be compensated for the loss of two days’ holidays per year between 2011 and 2021.  On January 12th 2024, she received a reply indicating that the focus in the HR department was on updating the holiday entitlement for employees going into 2024.  The HR officer asked for time to deal with the complainant’s query.  When the complainant pursued the matter, she was informed that a complaint had been submitted to the WRC by another retiree and that no decision would be made on her claim pending the outcome of that case.  On April 30th 2024, on behalf of the complainant, Fórsa lodged a dispute with the WRC under s.13 of the Industrial Relations Act 1969.  In August 2024, when the hearing opened to investigate that matter, it was withdrawn.  On September 17th 2024, Fórsa submitted this complaint under the Organisation of Working Time Act 1997.

Preliminary Issue

For the respondent, Mr Watters argued that s.19 of the Organisation of Working Time Act 1997 provides a statutory entitlement to employees of 20 days’ holidays per year.  He submitted that my jurisdiction does not extend to the complainant’s contractual annual leave entitlements of more than 20 days.  In support of this position, he referred to the decision of the Labour Court of July 2022 in the case of Eamon Coughlan and Carlow County Council[1].  The Court decided that, although Mr Coughlan had a contractual entitlement to 25 days’ annual leave, it had no jurisdiction to deal with any breach of the Act outside his legal entitlement to 20 days.

During the course of the hearing on this matter, on behalf of the complainant, Ms O’Hara asked for an opportunity to respond to this preliminary point raised by Mr Watters on behalf of the respondent.  I have now taken account of a supplementary submission on this point which I received on June 6th.   

The complainant’s case has been well set out by her trade union, and I understand her sense of unfairness that she missed out on two days’ holidays for 10 years from 2011 until she retired in December 2021.  The issue for me to consider however, is if her former employer was in breach of s.19 of the Organisation of Working Time Act by not ensuring that she availed of her legal entitlement to four weeks’ holidays in any year.  The complainant has not made any claim regarding her statutory annual leave entitlement.

As this complaint relates to a provision for employees in the public sector for annual leave in excess of the statutory minimum, I must take account of the decision of the Labour Court in the case referred to by Mr Watters, Eamon Coughlan and Carlow County Council.  Mr Coughlan had a contractual entitlement to 25 days’ holidays and his complaint was about the inclusion of overtime pay in his holiday pay.  While the complainant’s case is simply about her entitlement to holidays in excess of the statutory minimum, the decision of the Court is relevant.  In its deliberations on Mr Coughlan’s claim, the Court held that it had no jurisdiction with regard to a complainant’s “extra-statutory” leave.  In the absence of any subsequent authoritative pronouncements on this matter, I must adhere to the authority of the Labour Court and I find therefore, that the respondent’s position is legally sound.

I have concluded that the respondent was not in breach of s.19 of the Organisation of Working Time Act 1997 with regard to the complainant’s annual leave entitlement and I decide therefore, that her complaint is not well founded.

Annual leave above the statutory minimum entitlement of four weeks.