SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
ABBEY COURT HOSTEL
- AND -
Chairman: Mr Flood
Employer Member: Mr Keogh
Worker Member: Mr. Somers
1. Appeal against Rights Commissioner's Decision WT10799/02/LM.
2. The worker was employed as a cleaner from January, 2001 until she terminated her employment in June, 2002. It is alleged by the worker that she has not received her full holiday entitlement as provided for under the Organisation of Working Time Act, 1997. The worker also claims that she did not receive premium pay for working Sundays.
Management states that the worker was paid all her holiday pay due to her and that her contract of employment provided for a composite rate of pay for Sundays, Bank Holidays and National Holidays.
The worker alleges that the Company is in breach of the Organisation of Working Time Act, 1997, and referred the dispute to a Rights Commissioner for investigation. A Rights Commissioner's hearing took place on the 7th October, 2002. The following is the Rights Commissioner's Decision:-
- " Based on the submissions made and for the reasons set out in the foregoing I find that Paula Doyle has a valid complaint in respect of breaches of the Organisation of Working Time Act, 1997 and is to receive a total of €2, 507 in respect of all claims."
The Company appealed the decision to the Labour Court on the 3rd March, 2003, under Section 28(1) of the Organisation of Working Time Act, 1997. Labour Court hearings were held on the 19th April, 2003 and on the 1st September, 2003.
The following is the Court's Determination:-
There were two areas of appeal before the Court, Holiday Payments, and Sunday Premium Payment.
The Court has been given comprehensive written oral submissions by the parties including time sheets and copies of cheque payments. Despite this the Court has found it extremely difficult to follow the “payment trail” in this case, particularly in view of the Company evidence presented.
The Court finds as follows on the issues in dispute.
Annual Leave Payment:
The Court having examined in detail the information supplied by the employer is not satisfied that a case has been proven that the employee was paid in full for her annual leave as claimed by the employer. In any event, this Court has consistently held that the inclusion of an element in basic pay designed to cover Holiday Pay is inconsistent with the result which the directive and Part III of the Act are intended to achieve. It follows that a term in an employee's contract of employment, which purports to make such a provision is void by operation of Section 32 of the Act. See Determination No. DWT017 Kvaerner Cementation (Ireland) Limited and Martin Treacy.
The Court therefore rejects the appeal in relation to this element of the case, upholds the Rights Commissioner's decision and awards the complainant €376.00 euro in respect of this element of her complaint.
Premium Pay for Sunday:
The Court after careful consideration supports the Rights Commissioner's decision that the claimant is due a premium for Sunday working. However, the Court does not agree with the Rights Commissioner's decision to “take cognisance of the Contract Cleaning (City and County of Dublin) Joint Labour Committee of which the Labour Court, pursuant to Section 48 of the Industrial Relations Act 1990 had made an employment regulation order dated the 24th April, 2002 fixing the statutory minimum rates of remuneration” and use that as the basis for fixing an award of compensation.
The Court having examined all the circumstances of the case recommends that this breach by the employer be remedied by the payment of €800 compensation rather than €1700 recommended under the Rights Commissioner's formula.
The Court therefore awards the claimant the total sum of €1176 compensation under the Act.
Signed on behalf of the Labour Court
17th November, 2003______________________
Enquiries concerning this Determination should be addressed to Larry Wisely, Court Secretary.