SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
O'BRIENS IRISH SANDWICH BAR
- AND -
Chairman: Mr Duffy
Employer Member: Mr Grier
Worker Member: Mr O'Neill
1. Appeal against Rights Commissioner's Decision R-035498-Ma-05/TB.
2. The appeal concerns a worker who claims that she worked for the Company for 2 2/3 hours on the 14th February, 2005. The Worker claimed that she was not paid holiday pay and that the Company was in breach of the Organisation of Working Time Act, 1997. Management rejected the claim. The dispute was referred to a Rights Commissioner for investigation. On the 8th December, 2005 the Rights Commissioner issued his Decision as follows:
"Based on the 2 /2/3 hours which the Claimant worked for the Respondent she calculates that she is entitled to €1.33 holiday pay
I award the claimant €1.33 holiday pay"
On the 15th January, 2006 the Claimant appealed the Rights Commissioner's Decision to he Labour Court. The Court heard the appeal on the 17th May, 2006.
3. 1. The Decision of the Rights Commissioner is deficient in the matter of Holiday Pay and statutory rest breaks regarding a complete shift worked. The Rights Commissioner decided that the Employer was in breach of the Act and awarded the Claimant €1.33.
2. The Claimant is entitled to a compensation award of an amount equivalent to and not over two year's salary for breach of the Act. The annual salary of the claimant is €15,065 x 2 which amounts to €30,130.
4. 1. The Claimant was made aware and understood that she was attending a "trial day" whereby she could assess the work environment and the Company could assess her suitability.
2. The Company deemed the worker to be unsuitable. She was offered lunch free of charge as a gesture of goodwill and informed that she was unsuitable for employment with the Company.
The Court has carefully considered the submissions of the parties to this appeal.
The Court is of the view that the Claimant should have been paid for the full day in question. In the circumstances her entitlement in respect of annual leave should be based on a full day's work. This amounts to €4.48, less the amount already paid. Accordingly the Court awards the Claimant €3.15 under the Act.
The Decision of the Rights Commissioner is varied by that amount.
Signed on behalf of the Labour Court
24th May, 2006______________________
Enquiries concerning this Determination should be addressed to Tom O'Dea, Court Secretary.