SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
BRIAN MULDOON & SONS LIMITED
- AND -
Chairman: Ms Jenkinson
Employer Member: Mr Pierce
Worker Member: Mr O'Neill
1. Appeal against Rights Commissioner's Decision WT6816/01/JH.
2. The worker was employed for the period September, 1998, to March, 2001. The issue in question is whether the claimant received holiday pay during the period of her employment. The claim was referred to a Rights Commissioner for investigation. Her decision issued on the 22nd of February, 2002, as follows:
“Based on the submissions made at the hearing and for the reasons set out in the foregoing conclusions I find that Bernice McKeever did not receive her statutory holiday entitlements during her employment or at the termination of her employment from Brian Muldoon & Sons Ltd.. She is to receive €300 in settlement of her claim under the Organisation of Working Time Act, 1997.”
The worker appealed the Rights Commissioner’s decision to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997, on the 4th of April, 2002. A Labour Court hearing took place in Dundalk on the 27th of June, 2002.
3. 1. The worker, during her employment, only received £60 holiday pay, with no additional payment for bank holidays worked.
2. The worker was not aware she was entitled to holiday pay.
3. The worker did not receive any pay slips.
4. 1. The employer was unaware of any exceptional circumstances relating to the worker leaving.
2. The business ethos of the Company has been to provide a happy working environment for all employees.
3. The worker gave no indication of any unhappiness with her pay or working conditions at the time of employment.
4. The worker made her claim several months after the submission of her resignation. The claim was made against an employee of the business. The final complaint was made nine months after the worker’s resignation.
The claim was lodged on the 27th of November, 2001, outside the time limit provided for in Section 27(4) of the Organisation of Working Time Act, 1997. However, the Rights Commissioner extended the time limit, as is provided for under Section 27(5). Section 19(1) of the Act entitles an employee to 8 per cent of the hours he or she works in the leave year and Section 20(1) provides that, subject to certain conditions, it is for the employer to determine the time at which annual leave is granted to an employee provided the leave is granted within the leave year to which it relates or, with the consent of the employee, within the 6 months thereafter. A leave year is defined by Section 2(1) as a year beginning on the 1st of April.
Therefore, an infringement of Section 19 of the Act could not be held to have occurred until that time scale had expired without the paid leave having been granted.
The claim was made on the 27th of November, 2001; the Court is of the view that the appropriate period to take into consideration is the leave year from the 1st of April, 2000, to the 31st of March, 2001. The appellant's employment terminated on the 13th of March, 2001.
The employer did not provide the Court with information on hours worked for this period, paid annual leave taken and paid public holiday entitlements received by the worker during this period. Therefore, the Court relies on the information supplied by the appellant.
The Court calculates that during the period in question (the leave year from the 1st of April, 2000, to the 31st of March, 2001), the appellant built up a public holiday entitlement of €243.28 and an annual leave entitlement of €427.76. In accordance with Section 27(3)(c) of the Act, having regard to all the circumstances of this case, the Court awards compensation which brings the total amount due under the Act to €1,000 in full and final settlement of this claim.
The Court so decides.
Signed on behalf of the Labour Court
29th July, 2002______________________
Enquiries concerning this Determination should be addressed to Caroline Hayes, Court Secretary.