SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
SECLUSION PROPERTIES LIMITED
- AND -
Chairman: Mr Duffy
Employer Member: Mr Grier
Worker Member: Mr O'Neill
1. Appeal against Rights Commissioner's Decision WT16654/03/JH.
2. The worker was employed by the Company from December, 2002 to July 2003. His complaint was that on termination of his employment he sought payment of holiday pay he was advised that holiday pay was included in his rate of pay. The worker also claimed that he had worked four public holidays and received no additional payment.
The Rights Commissioner's decision of the 5th May, 2004 as follows:
"In accordance with previous Rights Commissioner and Labour Court Decisions it has been decided that an inclusion of holiday pay in a rate of pay contravenes the terms of the Organisation of Working Time Act, 1997. I am satisfied therefore that John Leetch did not receive his entitlement to holiday pay during or at the termination of his employment. He has therefore a valid complaint. John Leetch is to receive his entitlement as follows, 8% of pay - €234.60, payment for four public holidays - €253. The total therefore in outstanding entitlements is €487.60. I am satisfied that in this instance the employer was notified of the complaint on termination of employment . He was advised by the claimant of the opinion of the Department of Enterprise Trade and Employment. Subsequently the employer received notice of this complaint and failed to address the issue and failed to attend the hearing. Mr. Leetch has now waited a considerable time for his statutory entitlements and he has pursued this case at some cost and inconvenience to himself. In all of these circumstances I consider that John Leetch is entitled to an additional sum of €250 in compensation as provided for in the Organisation of Working Time Act, 1997. In total John Leetch is to receive the sum of €737.60 net in settlement of his complaint under the Organisation of Working Time Act, 1997".
The employer 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 20th May, 2004. The Labour Court heard the appeal on the 5th October, 2004.
The claimant was employed in a part-time capacity by the respondent as a doorperson at its premises, the Old Oak Bar, Tralee, Co Kerry. His employment commenced in December 2002 and terminated in July 2003. The claimant worked two shifts per week between 10pm and 3.30pm. His rate of pay for each shift was €63.25. He normally worked on Sunday night into Monday morning. He was not paid in respect of any public holidays during the currency of his employment nor did he receive any annual leave. On the termination of his employment the claimant sought payments in respect of annual leave and public holidays. This was refused by the respondent.
The claimant brought a complaint before a Rights Commissioner pursuant to the Organisation of Working Time Act 1997. The respondent failed to attend the hearing before the Rights Commissioner. The Rights Commissioner held with the claimant and awarded him a total of €737.60 in satisfaction of his claim. The award included €250 in addition to the economic value of the holidays withheld. The respondent appealed to this Court.
In the course of the appeal it was accepted by the respondent that the economic value of annual leave withheld from the claimant is €273.70 rather than €234.60 as claimed by the claimant before the Rights Commissioner. It was also accepted that the claimant also normally worked on part of a day which is a public holiday and is entitled to a days pay in respect of the four public holidays which occurred during the currency of his employment. The Court is further satisfied that the award of compensation in the amount of €250 is reasonable and appropriate.
Accordingly, the Court is satisfied that the decision of the Rights Commissioner is entirely correct and it is affirmed with the modification that the award be increased to one of €776.70.
The respondents appeal is disallowed.
Signed on behalf of the Labour Court
19th October, 2004______________________
Enquiries concerning this Determination should be addressed to Jackie Byrne, Court Secretary.