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DWT1913

FULL RECOMMENDATION
WTC/19/26
DETERMINATION NO. DWT1913
ADJ-00017193 CA-00022202-003/004 CA-00022204-003/004

SECTION 28 (1), ORGANISATION OF WORKING TIME ACT, 1997


PARTIES :
MCCOSKER & SONS LTD

- AND -

JOE DEMPSEY
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)


DIVISION :

Chairman: Ms O'Donnell
Employer Member: Ms Connolly
Worker Member: Ms Treacy
SUBJECT:
1. An appeal of Adjudication Officer’s decision No. ADJ-00017193.


BACKGROUND:

2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court on the 21st March 2019 in accordance with Section 28(8) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 4th June 2019.


The following is the Determination of the Court:-

DETERMINATION :

This is an appeal by Mc Cosker and Sons Ltd (the Respondent) against the decision of an Adjudication Officer in a complaint by Joe Dempsey (the Complainant) pursuant to s.41 of the Workplace Relations Act 2015. The complaint relates to an alleged contravention of the Organisation of Working Time Act 1997 (the Act).

The Adjudication Officer held that the Complainant was entitled to 5 days annual leave for the leave year in question and to be paid the correct rate of pay for his three public holidays.

In line with the normal practice of the Court, the parties are referred to in this Determination as they were at first instance. Hence, Joe Dempsey is referred to as the Complainant and Mc Cosker and Sons Ltd is referred to as the Respondent.

Facts

The Complainant worked for the Respondent as a painter from 25th March 2018 and ceased on the 15th June 2018. It is the Respondent’s submission that the Complainant was paid for one day’s annual leave and therefore was only due four days annual leave and not the five days awarded by the Adjudication Officer. This was accepted by the Complainant. The Court therefore determines that the Complainant is due to be paid for four days annual leave. In a linked case CD/19/190 the Court held that the Complainant was entitled to be paid an hourly rate of €18.93 the outstanding annual leave should be paid at that hourly rate.
The second element of the claim relates to the rate of pay paid for public holidays. The Court has already held in CD/19/190 that the correct hourly rate is €18.93 as the Court has ordered payment of the differential between the rate paid and the rate due for the full period of his employment this addresses the shortfall in payment for the three public holidays.

Determination

The Court determines that the Respondent pays to the Complainant the sum of €605.76 in respect of four days annual leave and €200 compensation for breach of the Act. The decision of the Adjudication officer is set aside. The Court so determines.












Signed on behalf of the Labour Court



Louise O'Donnell
CH ______________________
19th June 2019 Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Carol Hennessy, Court Secretary.