SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
O'BRIENS CABS & COURIER SERVICES LIMITED
- AND -
(REPRESENTED BY CARMODY & COMPANY SOLICITORS)
Chairman: Ms Jenkinson
Employer Member: Mr Grier
Worker Member: Mr Nash
1. Appeal against Rights Commissioner's Decision R-032382-MA-05/MMG.
2. The worker concerned commenced employment with the Company in early 1994 as a taxi driver. He contends that he was never given a written statement of his terms and conditions of employment until he requested it late last year. He has also stated that he was not afforded the opportunity to take his annual holiday entitlements as per the allowances under the Act and was also at a loss for his breaks.
The Company claim that there was a verbal agreement with the employee that he would receive two weeks extra pay during the summer and again in December. Leave was by mutual consent. The Company state that the employee chose to take only one weeks leave during August per year.
The issue was referred to a Rights Commissioner for investigation. His decision issued on the 9th June, 2005. He awarded the worker €1750 compensation in respect of remuneration that the worker did not receive in relation to his holiday entitlements.
The worker appealed the Rights Commissioner’s Decision to the Labour Court on the 12th July 2005, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. The Court heard the appeal on the 5th October, 2005.
3. 1. The worker should have been given his holiday entitlements within the leave year or 6 months thereafter.
2. It is illegal for an employer to pay an allowance in lieu of the minimum statutory holiday entitlement unless the employment is terminated.
4. 1. The worker has never raised any issues with the Company during his ten years of service.
2. All other employees are satisfied with their conditions of employment.
The claimant brought proceedings before a Rights Commissioner claiming infringements of a number of employment rights statutes in respect of his employment, including the Terms of Employment (Information) Act, 1994 and the Organisation of Working Time Act 1997.
The Rights Commissioner awarded the claimant separate compensation for an infringement of the Terms of Employment (Information) Act 1994. Appeals under this Act are made to the Employment Appeals Tribunal and not the Labour Court. This aspect of the employee's appeal cannot be dealt with in the present proceedings. Therefore, this appeal is concerned only with his claim under the Organisation of Working Time Act, 1997.
The Rights Commissioner found in favour of the worker under the Organisation of Working Time Act, 1997, and awarded the sum of €1,750 in respect of the remuneration he had not received in relation to holidays entitlements for his most recent holiday period.
The employee appealed the decision of the Rights Commissioner and sought compensation for all outstanding annual leave and public holidays for a ten-year period prior to the date of claim.
It is the Respondent's case that at the commencement of the Appellant's employment there was an agreement that he would receive two weeks extra pay during the summer upon request and two weeks extra pay in December. This was denied by the Appellant.
The Respondent accepted that the Appellant did not receive his entitlements under the Act in respect of public holidays.
Section 19 of the Organisation of Working Time Act 1997 (the Act) provides employees with a statutory right to paid holidays. Section 23 of the Act provides for payment in lieu of annual leave not taken only on cessation of employment when compensation may be paid to an employee when there is outstanding annual leave due to an employee.
Section 21 of the act provides employees with a statutory right to public holidays.
The provisions of the Act lay an onus on the employer to ensure that the employee receives the requisite period of paid leave and that this cannot be offset by an agreement between the parties to grant extra pay to cover holiday entitlements which the employee may or may not decide to take in the future. The Court has taken the view that any agreement or arrangement, the likely practical effect of which is that employees will not take holidays, is inconsistent with the result envisaged by the Directive, which is to protect the health and safety of workers, and must be regarded as inconsistent with the Act. The Court holds that the impugned practice of paying in lieu of time off in respect of annual leave is rendered void by the combined effect of Section 37 of the Act and Article 7(2) of Directive 93/104/EC on the Organisation of Working Time.
On 5th February, 2005, he 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 and public holidays. The complaint was heard by the Rights Commissioner on 14th April, 2005.
The Scope of the Complaint.
The complaint herein relates to alleged continuing contraventions of the Act extending over the entire duration of the claimants employment with the respondent.
The Court is satisfied that the claim in respect of the leave year 1st April 2004 to 31st March 2005 was presented within the time limit prescribed by Section 27(4) of the Act. No application was made to the Rights Commissioner to extend the time limit permitted by Section 27(5). Consequently, this Court does not have the jurisdiction to adjudicate on his complaints in respect of previous leave years.
The Claimant's Holiday Record for the Leave Year 2004 to 2005.
The leave year 2004 to 2005 ended on 31st March, 2005. Hence any contravention of the Act arising from the Respondent's failure to provide the claimant with the requisite leave in respect of that leave year accrued within the relevant period. However, in so far as the complaint relates to the Respondents failure to pay the claimant in respect of annual leave or public holidays actually taken on dates prior to the relevant period, it is statute barred and, to that extent it is not cognisable by the Court.
The Appellant stated to the Court that he received one weeks paid holidays in this period, therefore, he is entitled to redress for the loss of the remainder of the annual leave (15 days) and for all nine public holidays which occurred.
The Court finds that the Respondent has contravened Section 19 and 21 of the Act in failing to provide the Appellant with annual leave and public holidays in accordance with those sections.
Therefore, the Court recommends payment of €1920.00 to cover the economic loss suffered by the Appellant plus payment of €1080.00 compensation and directs the respondent to pay a total sum of €3000 to the Appellant.
The Court upholds the appeal and varies the Rights Commissioner's decision accordingly.
The Court so determines.
Signed on behalf of the Labour Court
10th November, 2005______________________
Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.