SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
(REPRESENTED BY GROARKE & PARTNERS SOLICITORS)
- AND -
Chairman: Ms Jenkinson
Employer Member: Mr Murphy
Worker Member: Mr O'Neill
1. Appeal of Rights Commissioners Decision R-031195-Wt/04/Gf.
2. The worker commenced employment on the 29th of March, 2004, and finished on the 12th of October, 2004, a period of 28 weeks. His net pay was €550 per week. The employer estimated that his holiday entitlement for the period was 10.77 days. There was disagreement between the parties as to how much leave was taken. The worker claims that he only took two days off when he was sick and that he did not receive any holiday leave. The Company claims that he took 8 days' annual leave. At the Labour Court hearing the Company stated that the worker was entitled to 4.5 days' holidays, worth €412.47.
The worker referred his case to a Rights Commissioner and his decision is as follows:-
" In the absence of the respondent I am accepting the claimant as a credible witness. I decide his complaint is well founded. I require the respondent to pay him two weeks holiday pay of €1100 forthwith.".
The Company appealed the decision to the Labour Court on the 19th of May, 2005, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 25th of October, 2005, in Mullingar. The following is the Court's determination:-
A complaint was heard by a Rights Commissioner on 9th March, 2005, by the worker pursuant to Section 27 of the Organisation of Working Time Act, 1997(the Act). He complained that the Appellant (the employer) failed to grant him the full amount of annual leave to which he was entitled under Section 19(1) of the Act.
The Appellant failed to attend before the Rights Commissioner (an explanation for which was provided to the Court). In these circumstances, the Rights Commissioner found that the complaint was well founded and awarded the worker €1,100.00 compensation in respect of breaches of the Act. It is against that decision that the Appellant appealed to the Court.
The Complainant was employed by the Appellant from 29th March to 12th October 2004. He maintained that he only received two days' paid holidays during that period.
In its evidence to the Court, the Appellant accepted that annual leave entitlements of 2.5 days were due to the Complainant in accordance with the provisions of the Act, however, it does not accept that he is owed 10 days as claimed. The Appellant produced evidence to the Court that the Complainant had been absent for 9 days and was paid for 7 of those days, and accordingly held that these 7 days were days of annual leave.
The Appellant took the view that days the worker was absent from work should be considered as days of annual leave.According to the Complainant at least twoof those days were days off due to illness and he disputed his absence on the other days.
Having considered the submissions of both sides, the Court is satisfied, having examined the records of the Company, that the worker has not received his full annual leave entitlements. Annual leave entitlements must be given in accordance with section 19 of the Act which provides that workers should receive the requisite leave and be paid their normal weekly rate in respect of that leave. The Act places a duty on employers to grant the leave. Therefore, the Court cannot accept that the complainant was granted his full entitlement to paid annual leave in accordance with the Act.
Accordingly, the Court recommends the employer should pay a total payment of €1300.00 to the Complainant in discharge of annual leave entitlements and inclusive of compensation.
The Court dismisses the appeal and varies the Rights Commissioner's decision accordingly.
The Court so determines.
Signed on behalf of the Labour Court
2nd December, 2005.______________________
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.