SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
- AND -
Chairman: Mr McGee
Employer Member: Mr Doherty
Worker Member: Mr. Somers
1. Appeal against Rights Commissioner's Decision WT12541/02/TB.
2. This appeal concerns a worker who commenced employment on the 13th February, 2002. His employment ended in August, 2002. The worker claimed that, upon termination of his employment, he did not receive his holiday entitlements under the Organisation of Working Time Act, 1997 (The Act). Management rejected the claim. The dispute was referred to a Rights Commissioner for investigation . On the 11th April, 2003 the Rights Commissioner issued his Decision as follows:
"Based on the uncontested evidence of the claimant I uphold this complaint and award him 10.7 days holiday pay due to him. Based on his monthly rate of pay the amount of the award was €1,119."
On the 20th November, 2003 the Company appealed the Decision to the Labour Court. The Court heard the appeal on the 28th July, 2004.
3. 1. According to the Company's records the claimant's employment was terminated on the 2nd August, 2002 and not the 30th August, 2002 as outlined in the Rights Commissioner's Decision.
2. The Company paid the claimant €1,269.74 in respect of his statutory entitlements. However, following a review of its calculations, Management discovered that the claimant had been underpaid by an amount of €136.68. The Company is willing to reimburse the claimant with this amount.
1. The claimant was given one month's notice commencing in August, 2002. He was not required to work this notice.
2. The claimant was employed for six months. He did not take holidays during the period of his employment. The claimant's final pay cheque, which he received at the end of August, did not include any holiday pay. He made enquiries to the Company regarding this issue at the time, to no avail.
Having considered the written and oral submissions of the parties, and the evidence given, the Court finds that the claimant is entitled to holiday pay in respect of the period of his actual working time from 12th February, 2002 to 2nd August, 2002 .
Under Section 19 1 (b) of the Act, an employee is entitled to paid annual leave of 1/3 of a working week for each month in which he or she works at least 117 hours.
The employee in this case worked for the appellant for six months and in each month worked at least 117 hours. Therefore the claimant is entitled to two weeks paid leave.
Under S.I. NO. 475 of 1997 the Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997, the normal weekly wage for the purposes of calculating holiday pay is the sum paid in respect of the normal weekly working hours last worked by the employee before the annual leave or as the case may be the cesser of employment commences.
The claimant was paid a monthly salary of €1,904.60 gross. This multiplied by 12 and divided by 52 give a gross weekly wage of €438.01. The claimant is therefore entitled to the sum of €876.02 in respect of accrued leave.
The decision of the Rights Commissioner is varied and the Court awards the claimant the sum of €876.02 in respect of his claim for Holiday Pay. The appeal is allowed to that extent.
Signed on behalf of the Labour Court
9th September, 2004______________________
Enquiries concerning this Findings should be addressed to Tom O'Dea, Court Secretary.