SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
DUNNES STORES, CAVAN
(REPRESENTED BY WILLIAM FRY SOLICITORS)
- AND -
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Ms Jenkinson
Employer Member: Mr Doherty
Worker Member: Mr. Somers
1. Appeal against Rights Commissioner's Decision WT16028/03/JH
2. The worker commenced employment as a full-time employee in April, 1982. The Union's case is that the worker was told that annual leave was on a 'year-in-hand' basis, and that she received her annual leave entitlements in April, 1983, based on her 1982 hours. The worker believed that throughout her employment with the Company she was owed one year's annual leave. When she resigned on the 27th of June, 2003, she expected her annual leave entitlement of 22 days to be included in her final payment. This did not happen as the Company's position was that she had received all of her entitlements.
The dispute was referred to a Rights Commissioner whose decision was as follows:
"This is a claim under the Organisation of Working Time Act. I can find no breach of the Act in respect of the holiday pay due to the claimant under the Organisation of Working Time Act at the time of the termination of her employment. I therefore find that the worker does not have a valid complaint against Dunnes Stores."
The worker appealed the decision to the Labour Court in accordance with Section 28(1)
of the Organisation of Working Time Act, 1997, on the 30th of December, 2003. A Labour Court hearing took place in Cavan on the 20th of August, 2004, the earliest date suitable to the parties.
3. 1. A former employee of the Company who terminated his contract in July, 2001, received payment for one year's annual leave in arrears. This was custom and practice in the Company up to that time. The Company changed the system for calculating annual leave in May, 2002, for "legal reasons"
2. The Organisation of Working Time Act, 1997, provides that annual leave must be given in the annual leave year or, with the consent of the employee, within 6 months following the leave year. The worker had accrued one year's annual leave entitlement by 1997. The Company allowed the accrual to continue for existing employees before withdrawing it in May, 2002.
4. 1. The Organisation of Working Time Act, 1997, referred to annual leave from the current year. The Act does not provide for the carrying forward of leave as claimed by the Union.
2. The worker received all leave due to her. Indeed, over the years she received well in excess of the leave due to her. The worker should have made a claim at the right time, i.e. prior to the Organisation of Working Time Act, 1997, coming into being.
This is an appeal by the worker against the decision of the Rights Commissioner in WT16028/03/JH who found that there was no breach of the Organisation of Working Time Act, 1997, in respect of holiday pay due to the claimant at the date of her termination of employment and, therefore, found against the claimant.
The claimant in this case was employed by the respondent from April, 1982, until 27th June, 2003. At the time it was the practice in the Company to be provided with annual leave on a year-in-hand basis, so that she received her annual leave entitlement in 1983 based on the number of hours worked in 1982. When Ms. Smith resigned her position on 27th June, 2003, she sought arrears payment of annual leave she claimed were due to her.
On 10th July, 2003, she made a complaint to a Rights Commissioner pursuant to Section 27 of the Act, claiming redress in respect of alleged infringements of her statutory rights in relation to annual leave. The complaint was heard by the Rights Commissioner on 28th October 2003.
The Scope of the Complaint.
The complaint herein relates to alleged contraventions of the Act
“in failing to fulfil its obligation to ensure that all accrued annual leave was given when the Act came into force, and agreeing to continue with the accrual until termination of contract, the company was in breach of Section 20 of the Act by failing to ensure that annual leave entitlements were taken on a current basis”.
The Union submitted to the Court that the Company’s failure to give annual leave entitlement, which accrued over the period of her employment, on cessation of employment represented a breach of section 23(i) of the Act.
The Court notes that no claim was made under section 27(5) of the Act for an extension of the time limit prescribed by Section 27(4) of the Act. Section 27(4) of the Act allows for complaints to be presented within 6 months of the alleged contravention. The Court will, therefore, deal with complaints appertaining to contraventions of the Act alleged to have occurred on or after 11th January, 2003, (hereafter the relevant period).
The leave year 2003 to 2004 ended on 31st March, 2004. Hence, any contravention of the Act arising from the respondent’s failure to pay the claimant in respect of outstanding holidays on the cessation of her employment accrued within the relevant period. However, in so far as the complaint relates to the respondent's failure to pay the claimant in respect of annual leave taken on dates prior to the relevant period, it is statute barred and, to that extent it is not cognisable by the Court.
The claimant’s holiday record.
Leave year 2003 – 2004
The Union stated that the claimant had 10 days' annual leave by the date of her cessation of employment on 27th June, 2003.
Leave year 2002 – 2003
The Union stated that the claimant had received 22 days' annual leave for the leave year 2002 – 2003.
Having considered the worker’s appeal of the Rights Commissioner's recommendation and based on the evidence before the Court, the Court is satisfied that the worker received her full annual leave entitlement under the terms of section 19 of the Organisation of Working Time Act, 1997, and, therefore, there is no claim under Section 23 of the Act. It would appear to the Court that the claimant's rights to take leave in the current year crystallized when the Act came into force, and any claim in respect of outstanding leave should have been made at that time. Since the Act came into force, the claimant has received her full statutory entitlement each leave year.
This complaint is, therefore, not well founded. The Court upholds the Rights Commissioner’s recommendation. The appeal fails.
Signed on behalf of the Labour Court
1st September, 2004______________________
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.