SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
K.F & B FLOOD T/A CHURCHTOWN STORES
- AND -
Chairman: Mr Duffy
Employer Member: Mr Doherty
Worker Member: Mr Nash
1. Appeal of Rights Commissioner's Decision R-045387-WT-06/TB.
2. The Worker concerned was employed by the Company as a shop assistant from the 14th October 2002 until he resigned from his employment in August 2006.
The Worker was on sick leave for a period of 4 weeks and when he returned he was informed by his Employer that he wouldn't be paid holidays for another year as he had been paid while out sick. The Worker subsequently left his employment because of the way he had been treated.
The Worker referred matters to a Rights Commissioner for investigation. His decision issued on the 4th April 2007 in which he found that the Worker concerned had a valid complaint in respect of the failure of his Employer to grant him his holiday entitlement. He awarded the Worker €1250 in respect of holiday pay due to him.
- The Employer appealed the Rights Commissioner's decision to the Labour Court on the 14th May 2007, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 3rd August, 2007, the earliest date suitable to the parties.
3. 1.The Employer maintains that he had an agreement with his employees to pay them while on sick leave in lieu of annual leave and that the Worker concerned availed of this in 2006.
2. The Worker was only due 6 3/4 days annual leave for 2006 and not 12 days as stated previously.
4. 1.The Worker maintains that he only received 6 days paid annual leave in 2006.
The Court has given careful consideration to the submissions made by the parties to this appeal.
The Court is satisfied that in the leave years 2005 and 2006, up to the termination of his employment on the 24th June 2006, the Claimant received a total of 23 days annual leave. Over the same period he accrued an entitlement under the Organisation of Working time Act (the Act) to 30 days leave. There was thus a shortfall of seven days in the leave which he was granted.
Section 20(1)(c) of the Act provides that annual leave must be granted in the leave year to which it relates or, with the consent of the employee, six months thereafter. Accordingly, the Court cannot take account of holidays in this period allegedly granted in 2004.
The economic value of the holidays of which the Claimant was deprived amount to
€659.12. However, the Court has previously held that where there is a contravention of the Act in respect of holiday entitlements, an award of compensation in the amount equal to the economic value of the holidays withheld does not constitute adequate compensation. InCementation Skanska (Formerly Kvaerner Cementation) and Tom CarrollDetermination 0338, this Court stated as follows in relation to the computation of compensation for failure to provide annual leave in accordance with the Act:
"The obligation to provide annual leave is imposed for health and safety reasons and the right to leave has been characterised as a fundamental social right in European Law (see comments of Advocate General Tizzano inR v Secretary of State for Trade and Industry, ex parte Broadcasting, Entertainment Cinematography and Theatre UnionIRLR 559 which were quoted withapproval by Lavin J in the
Royal Liver v Macken & Others,High Court, Unreported, Lavin J. 15 November 2002. InVon Colson & Kamann v Land Nordrhein - Westfalen ECR 1891 the ECJ has made it clear that where such a right is infringed the judicial redress provided should not only compensate for economic loss sustained but must provide a real deterrent against future infractions."
In all the circumstances of this case the Court is satisfied that the Claimant is entitled to compensation in the amount of €659.12, being the economic value of the holidays of which he was deprived. The Court is further satisfied that the Claimant should be paid additional compensation in the amount of €120 for the loss of his full statutory right to annual leave and in respect of the inconvenience and expense which he incurred in pursuing this claim.
Accordingly, the Court measures the compensation which is just and equitable in all the circumstances of this case at €779.12. The Employer is directed to pay compensation to the Claimant in that amount.
The Rights Commissioner decision is varied accordingly.
Signed on behalf of the Labour Court
13th August, 2007______________________
Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.