SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
VENETIAN BLINDS (IRELAND) LIMITED
- AND -
Chairman: Ms Jenkinson
Employer Member: Mr Grier
Worker Member: Mr. Somers
1. Appeal against Rights Commissioner's Decision WT15156/03/LM.
2. The worker concerned was employed by the Company from 1980, until the first quarter of 2003 when he was made redundant. The issue before the Court is whether the worker received only 15 days holiday per year for the years 1999-2002.
The complaint was referred to a Rights Commissioner for investigation. Her decision issued on the 28th November, 2003. She decided that the worker should be paid a weeks salary in respect of the leave year 2002 and that a further €100 be paid in compensation.
The worker appealed the Rights Commissioner's decision to the Labour Court on the 8th of January, 2004, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. The Court heard the appeal on the 17th of February, 2004.
The employer did not attend the hearing.
3. 1. The worker was unaware of his correct holiday entitlement until 1999.
2. The worker approached his employer concerning his holiday entitlement each year since 1999 but failed to get more than 15 days.
This is an appeal by the worker against the decision of the Rights Commissioner WT15156/03/LM under the Organisation of Working Time Act, 1997.
On 15th May, 2003, the appellant presented a complaint to a Rights Commissioner pursuant to Section 27 of the Act claiming redress in respect of alleged infringements of his statutory rights in relation to annual leave during the period 1999 to 2002. The complaint was heard by the Rights Commissioner on 20th November 2003.
The respondent failed to attend the hearing or to make any submission to the Court.
The claimant was employed by the respondent since the 1980's. He complained that the respondent failed to grant him the full amount of annual leave to which he was entitled under Section 19(1) of the Organisation of Working Time Act, 1997 (the Act) for the leave years 1998 - 1999, 1999 - 2000, 2000 - 2001 and 2001 - 2002.
If the claimant is correct, the failure to provide the requisite leave in each of the leave years constitutes a separate infringement of the Act, which must be considered separately, including for the purpose of applying the time limits prescribed by Section 27 of the Act.
Section 27(4) of the Act provides, in effect, that a complaint may not be entertained by a Rights Commissioner (or the Court on appeal) unless it is presented within a period of six months beginning on the date of the contravention of the Act to which the complaint relates. Section 27(5) provides that where reasonable cause is shown, this period may be extended by up to a further 12 months.
The practical effect of this provision is that the Court cannot entertain any portion of the claims which relates to annual leave which became finally due prior to 16th December, 2002, or if subsection (5) of Section 27 is applied, 16th December, 2001. It is from that date that the time limit starts to run.
The claimant told the Court that he had raised the question of his holiday entitlements with management on a number of occasions during the years 1999 to 2002. Management responded by producing a document outlying alternatives which provided for either the granting of an extra five days leave (from 15 days to 20 days) or the payment of a bonus payment in full. Faced with this dilemma the claimant opted for the full bonus payment and therefore, a formal complaint under the Act was not initiated until after his employer terminated his employment in March, 2003. In the circumstances, the Court accepts that this constitutes reasonable cause.
Accordingly, the Court is prepared, pursuant to Section 27(5) of the Act, to extend the period for the bringing of the complaint by a further 12 months.
The complaint herein was submitted on the 15th of May, 2003. The only infringements alleged which can be taken into account are those occurring on or after the 16th of December, 2001. Thus, those parts of the claims, which relate to arrears of annual leave in respect of the leave years 1998 - 1999 and 1999 - 2000 are out of time and are statute barred.
Leave Years 2001 - 2002 and 2002 - 2003
The claimant claims that in the leave year 2001 - 2002, he was granted 15 days' leave. On that basis, he is due a further 5 days leave. In the leave year 2002 - 2003, the claimant worker for 11 months and accrued an entitlement to 18.5 days' annual leave. He claims to have been granted 15 days. The claimant is entitled to redress in respect of the loss of cesser pay on termination of employment of 3.5 days. Hence the total claimed shortfall, within the reckonable period, is 8.5 days. As he was paid 4 days leave on cessor of employment, the overall shortfall in respect of the 2 leave years is 4.5 days.
It is clear from the foregoing, that the claimant did not receive his full entitlements in respect of annual leave for the leave years 2001 - 2002 and 2002 - 2003. His complaint is, therefore, well founded. Accordingly the decision of the Rights Commissioner is varied and the appeal herein is allowed.
Where a claimant has not received his or her statutory period of leave a claim cannot be made nor can an award be formulated as being for payment in lieu of holidays. Article 7 of the Working Time Directive expressly prohibits the payment of an allowance in lieu of annual leave except where the employment relationship has ended. In such cases the proper award should be in the form of compensation for loss of annual leave. Such an award need not be limited to the value of the lost holidays.
In this case the Court is satisfied that the appropriate form of redress is an award of compensation. In considering the element of its award to cover the economic loss suffered by the claimant, the Court has had regard to the rate of pay applicable to the claimant at the material time.
Having regard to all relevant considerations the Court measures the quantum which is fair and reasonable in all the circumstances at €450 and directs the respondent to pay the claimant compensation in that amount.
Signed on behalf of the Labour Court
8th March, 2004______________________
Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.