SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
LASCAR ASSOCIATES LIMITED
- AND -
Chairman: Ms Jenkinson
Employer Member: Mr McHenry
Worker Member: Mr O'Neill
1. Appeal by the Company against Rights Commissioner's Decision No. WT267/99/GF.
2. The appeal concerns a worker who commenced employment on the 1st of December, 1998. He was employed as a shift supervisor at the Company's outlet at Quinnsboro Road, Bray. The worker left the employment on the 16th of July, 1999. He claimed that he was entitled to arrears of holiday pay under the terms of the Organisation of Working Time Act, 1997. The Company reject the claim. The dispute was referred to a Rights Commissioner for investigation and decision. The Rights Commissioner investigated the dispute on the 7th of September, 1999. The Company did not attend the hearing. On the 22nd of September, 1999, the Rights Commissioner issued his decision as follows:-
"In the absence of the employer, wage rates, etc., I find the claim
is well founded and I order that the claimant be paid 19½ days
holidays at £40 per day, a total of £780 forthwith."
On the 15th of October, 1999 the Company appealed the Rights Commissioner's decision to the Labour Court. The Court heard the appeal on the 30th of November, 1999.
The Court considered the appeal of the employer of the Rights Commissioner's decision. Due to lack of evidence to the contrary the Court accepts the employer's assertion that the worker commenced employment on the 1st of December, 1998. It is not argued by either party that the employment ceased on the 16th of July, 1999.
The Court has not been furnished with precise details of the hours worked as this information is not available, therefore, the Court calculates the annual leave entitlement on the basis of the worker's monthly entitlements for the period of the 1st of December, 1998 to the 30th of June, 1999, and estimates the hours worked from then until the termination date.
Annual Leave Entitlement
The Court is satisfied that the worker has the following annual leave entitlement:-
3 months at 1.5 days = 4.5 days
4 months at 1.66 days = 6.64 days
8% of hours 1st and 16th July = 1 day*
Total annual leave entitlement = 12.14 days
Total annual leave received = 5 days
Therefore, outstanding annual leave entitlement = 7.14 days.
*based on 8% of estimated hours worked between 1st and 16th July, 1999.
Public Holiday Entitlement
The Court is satisfied that the worker has the following public holiday entitlement:
6 days (based on his public holiday entitlement for the 25th and the 26th
of December, 1998, the 1st of January, the 17th of March, the 5th of April
and the 7th of June, 1999. The worker agreed that he did not work and was
paid for the 3rd of May, 1999).
Having accepted that he had been paid five days holidays pay when his employment was terminated, in total the worker had an outstanding entitlement to 13.14 days in respect of annual leave and public holidays for the period he worked between the 1st of December, 1998 and the 16th of July, 1999. As he was paid £199.95 per week, he is due to be paid £525.47 in respect of this claim. This payment should be made without delay to the worker.
The Court so determines.
Signed on behalf of the Labour Court
10th December, 1999______________________
Enquiries concerning this Determination should be addressed to Tom O'Dea, Court Secretary.