SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
NEWCASTLE WAREHOUSING LTD
- AND -
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Ms Jenkinson
Employer Member: Mr Doherty
Worker Member: Mr O'Neill
1. Appeal against Rights Commissioner's Decision No. R-039390-IR-06/TB.
2. The appeal concerns a worker who commenced employment with the Company in January, 2002. His employment ended on the 23rd August, 2005. The Union claimed that the worker was entitled to 3.6 days in annual leave under the provisions of the Organisation of Working Time Act, 1997, which the Company had not granted to him. The Company rejected the claim stating that the claimant had received his annual leave entitlements. The dispute was referred to a Rights Commissioner for investigation. On the 7th June, 2006 the Rights Commissioner issued his Decision as follows:
"Based on the uncontested evidence of the claimant I uphold the complaint and award the claimant the payment for 3.6 days annual leave due to him. The claimant's gross weekly wage was €600, accordingly I award him €432 due to him in annual leave payment".
On the 18th July, 2006 the Company appealed the Rights Commissioner's Decision to the Labour Court. The Court heard the appeal on the 2nd November, 2006
The claimant brought proceedings before a Rights Commissioner claiming infringements of a number of employment rights statutes in respect of his employment, including the National Minimum notice Act, 1973 to 2001, and the Organisation of Working Time Act 1997. He also brought a claim for outstanding wages under the Industrial Relations Act, 1969.
The Employer did not present her case before the Rights Commissioner for reasons, which were explained, to the Court. This is an appeal by the Employer against the decision of the Rights Commissioner under the Organisation of Working Time Act 1997.
The Employer disputed that the claimant had an outstanding entitlement to 3 ½ days annual leave. She stated that he had received 22 days annual leave for the leave year 2004, 2 of which had been brought forward from the leave year 2005. Details of annual leave taken by the claimant in 2005 were submitted which showed that he had received 10 days in June 2005 and had been paid 1 ½ days compensation in lieu of leave not taken at the termination of his employment. The employer submitted that the claimant’s employment terminated towards the end of August 2005 therefore, his statutory annual leave entitlement for that year, was 13 ½ days. She contended that when account is taken of the 2 days taken in 2004, brought forward from 2005, the claimant had received his full entitlement to annual leave for 2005.
The Union on behalf of the claimant accepts that he had taken 10 days annual leave in 2005, he disputed the arrangement referred to by the employer and stated that he had not been paid 1 ½ days compensation at the termination of his employment.
The Court has considered all the evidence before it in this case and finds that there is some doubt about the employer’s contention concerning the bringing forward of leave from 2005 in 2004. However, on the basis of the information supplied to the Court, it accepts that he was paid 1 ½ days compensation in lieu of leave not taken in his pay cheque paid on 25th August 2005.
Consequently, the Court finds that the claimant has an outstanding entitlement to 2 days annual leave. Therefore, the Court varies the Rights Commissioner's decision and determines that the employer must pay him the sum of €210.00 in respect of his claim under the Organisation of Working Time Act 1997
An order will be made in the claimant's favour in that amount.
The Court so determines.
Signed on behalf of the Labour Court
10th November, 2006______________________
Enquiries concerning this Determination should be addressed to Tom O'Dea, Court Secretary.