Case Number: DWT1722. Labour Court

• Judgment Date: 01 August 2017
• Year: 2017
• Docket Number: DWT1722
• Court: Labour Court (Ireland)

FULL RECOMMENDATION WTC/17/26 DETERMINATIONNO.DWT1722 ADJ-00001817 CA-00002382-001 ; SECTION 28 (1), ORGANISATION OF WORKING TIME ACT, 1997 ; PARTIES : SODEXO IRELAND LTD; (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION); - AND -; ELIZABETH POWDERLY; (REPRESENTED BY RICHARD GROGAN & ASSOCIATES, SOLICITORS) ; DIVISION : Chairman: Ms Jenkinson; Employer Member: Ms Doyle; Worker Member: Mr Shanahan

SUBJECT:
1. An appeal of an Adjudication Officer's Decision no ADJ-00001817, CA-00002382-001.


BACKGROUND:

2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court on the 27 April 2017 in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 23 August 2017. The following is the Decision of the Court.



DETERMINATION:

This is an appeal by Ms Elizabeth Powderly against the decision of an Adjudication Officer ADJ-00001817, CA-00002382-001 in a claim against her former employer, Sodexo Ireland Limited alleging contravention of the Organisation of Working Time Act 1997 as amended by the Workplace Relations Act 2015 (the Act). The Adjudication Officer found against her complaint.

In this Determination the parties are referred to as they were at first instance. Hence Ms Elizabeth Powderly is referred to as “the Complainant” and Sodexo Ireland Limited is referred to as “the Respondent”.

Background

In its unamended form, the Act did not provide that periods of absence from employment on sick leave were reckonable for the purpose of accruing annual leave. In Cases C-520/06 and C-350/06Stringer and others v. HM Revenue and Customs sub nomCommissioners of Inland Revenue v. Ainsworth and othersSchultz-Hoff v. Deutsche Rentenversicherung Bund[2009] IRLR 214 the Court of Justice of the European Union (CJEU) held that Article 7 of Directive 2003/88/EC concerning certain aspects of the organisation of working time (The Directive), properly construed, allowed for the accrual of annual leave during such periods of absence. The Act was subsequently amended by section 86 of the Workplace Relations Act 2015 so as to provide that periods of certified sick leave are reckonable for the purpose of calculating an entitlement to annual leave. The amendment further provided that the entitlement created endured for a period of 15 months from the close of the leave year to which it relates. That amendment took effect from 1^stAugust 2015.

The Complainant was employed on a part-time basis with the Respondent. In February 2013 she commenced a period of certified sick absence and continued on sick leave until she resigned from her employment on 27^thJanuary 2016. Upon the termination of her employment the Respondent paid the Complainant 7 ½ days holiday pay. The Respondent contends that the entitlement to accrue annual leave in respect of periods of sick leave only applies to periods after the commencement of the amendment on 1^stAugust 2015. Based on that understanding, the Respondent calculated the Complainant’s accrued annual leave while on sick leave from 1^stAugust 2015 until 27^thJanuary 2016. The Complainant contends that the Act in its amended form, if properly construed, entitled her a payment in respect of 30 days annual leave on the termination of her employment.


Summary of the Complainant’s Claim

Mr Richard Grogan, Solicitor, Richard Grogan & Associates, Solicitors, on behalf of the Complainant submitted that theComplainant’s annual leave which accrued prior to the cessation of her employment ought to have been calculated with due regard to the 1997 Act, as amended by section 86(1) of the Workplace Relations Act. He said that the provision was operative at the time the Complainant’s employment terminated and accordingly she was entitled to the benefit of that section in respect of her circumstances and the criteria laid out in section 86(1). Section 86(1) has been in effect since lst August 2015. It was submitted that the Respondent has erred in the manner in which it applied the 1997 Act, as amended, when calculating the Complainant’s leave.

Mr Grogan submitted that the Court ought to interpret the 1997 Act in a manner compatible with the Directive. Reliance in this regard was placed on the judgment of the CJEUin Case-441/l4Dansk Industri vEstate of Karsten Eigil Rasmussen ECLI:EU:C:2016:278. That case involved a request for a preliminary ruling pursuant to Article 267 TFEU, in a case involving age discrimination law in Denmark. The referring court sought guidance from the CJEU on the circumstances in which provisions of Union law prohibiting discrimination on grounds of age can be relied upon by domestic courts to interpret or disapply domestic law. According to Mr Grogan, the Court decided that, if the Danish provisions could not be interpreted compatibly with the general principle prohibiting discrimination on grounds of age, the Danish courts were bound to disapply the provisions so as to give effect to the general principle. The Court held at paras. 31-35:-

• “It follows that, in applying national law, national courts called upon to interpret that law are required to consider the whole body of rules of law and to apply methods of interpretation that are recognised by those rules in order to interpret it, so far as possible, in the light of the wording and the purpose of the directive concerned in order to achieve the result sought by the directive and consequently comply with the third paragraph of Article288TFEU (see, inter alia, judgments in Pfeiffer and Others, C-397/01 to C- 403/01EU:C:2004:584, paragraphs113and114,and K�c�kdeveci, C -555/07 EU:C:2010:21, paragraph 48).
  
  It is true that the Court has stated that this principle of interpreting national law in conformity with EU law has certain limits. Thus, the obligation for a national court to refer to EU law when interpreting and applying the relevant rules of domestic law is limited by general principles of law and cannot serve as the basis for an interpretation of national law contra legem (see judgments in Impact, C-268/06, EU:C:2008:223, paragraph 100; Dominguez, C-282/10, EU:C:2012:33, paragraph 25; and Association de mediation sociale, C-176/12, EU:C:2014:2, paragraph 39).
  
  It should be noted in that connection that the requirement to interpret national law in conformity with EU law entails the obligation for national courts to change its established case-law, where necessary, if it is based on an interpretation of national law that is incompatible with the objectives of a directive (see, to that effect, judgment in Centrosteel, C-456/98, EU:C:2000:402, paragraph 17).
  
  Accordingly, the national court cannot validly claim in the main proceedings that it is impossible for it to interpret the national provision at issue in a manner that is consistent with EU law by mere reason of the fact that it has consistently interpreted that provision in a manner that is incompatible with EU law.
  
  
  That point having been made clear, it should be added that even if a national court seised of a dispute that calls into question the general principle prohibiting discrimination on grounds of age, as given concrete expression in Directive 2000/78, does in fact find it impossible to arrive at an interpretation of national law that is consistent with the directive, it is nonetheless under an obligation to provide, within the limits of its jurisdiction, the legal protection which individuals derive from EU law and to ensure the full effectiveness of that law, disapplying if need be any provision of national legislation contrary to that principle (judgment in K�c�kdeveci, C-555/07, C -555/07 EU:C:2010:21, paragraph 51).”

Mr Grogan submitted that in accordance withDansk Industrithe Court is obliged toconstruct the Act in a manner compatible with the Directive and therefore must disallow the relevant provisions of the Act in order to give effect to the Directive. He submitted that the 1997 Act was simply silent on the matter of sick leave and annual leave for the purposes of section 19 and 20 of that Act. He contended that the Court has an obligation and the statutory authority to interpret the within claim as consistent with the provisions of the Directive as held by this Court inSeclusion Properties Limited and Kieran O'DonovanDWT 14114 where this Court made reference in that decision to the High Court judgment ofMinister for Justice, Equality&Law Reform&Commissioner of An Garda Siochanav.Director of Equality Tribunal[2009] IEHC 72 where Charlton J held that the Tribunal lacked jurisdiction "to overrule a statutory instrument".

Mr Grogan stated that the Supreme Court has commented on the obligation to interpret national law in accordance with Community law such as inAlbatros Feeds v. Minister for Agriculture and Food[2007] 1.R. 221 , where Fennelly J. states, that:-

• "[It is] perfectly clear that the Court is under an obligation to interpret national law, so far as possible, in the light of the Community provisions it is designed to implement. The national court is subject to the obligation of 'conforming interpretation' as the [European Court of Justice] ... described it in its judgment in ... Pupino".

In Minister for Justice, Equality & Law Reform & Commisioner of An Garda Siochana v. Director of Equality Tribunal, in holding that the Equality Tribunal lacked jurisdiction, Charleton J. held that:-

• "[t]here is no principle of European law which allows an administrative body or a court of limited jurisdiction to exceed its own authority in order to achieve a result, whereby it is of the view that European legislation has not been properly implemented".

However, Mr Grogan respectfully submitted this the abovedictamakes no allowance for the doctrine of the supremacy of EU law nor the observations of the Supreme Court in respect of the application of the principle of effectiveness. In advancing his argument, Mr Grogan contended that in deciding if this Court has the jurisdiction to find in favour of the...