SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
- AND -
JANINNE O' REILLY
Chairman: Mr Hayes
Employer Member: Mr Doherty
Worker Member: Mr Nash
1. Appeal of a Rights Commissioner's Decision R-078983-Wt-09/JT
2. The Employer appealed the Rights Commissioner's Decision to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997 on March 24th, 2010. The Court heard the appeal on July 22nd 2010, the earliest date suitable to the parties. The following is the Determination of the Court:
The case comes before the Court pursuant to Section 28(1) of the Organisation of Working Time Act, 1997(the Act).
The Complainant Ms Jannine O'Reilly alleged that the Respondent, Mr John Hetherton T/A Kells Motor Works, Bective Square, Kells, Co Meath, failed to provide her with paid leave contrary to Section 19 of the Act.
A Rights Commissioner investigated the complaint pursuant to Section 27 of the Act, upheld the complaint and awarded compensation in the sum of €500.
The Respondent appealed the decision to the Labour Court.
The Respondent submitted that he employed the Complainant as a shop assistant from 20th July 2008 until 27th March 2009. He submitted that he had made provision in the hourly rate for all her liabilities in respect of annual leave. He said the Complainant had taken one week's leave over the course of her employment. He said that he had not paid her any holiday pay but had given her a "few bob" when she was going on leave as he did with all of his staff.
The Complainant said she had been employed by the Respondent for roughly eight months and that she had taken one week's leave in that time and had not received any holiday pay. She said the Respondent had not given her any "few bob" when she was going on leave and that she had worked for all monies she received. She said her rate of pay was €8.50 per hour.
Findings of the Court:
It is common case that the Respondent employed the Complainant from 20th July 2008 until 27th March 2009 as a shop assistant on a rate of €8.50 per hour. During that period she took one week's leave for which she was not paid any holiday pay contrary to the provisions of Section 18 of the Act.
This Court dealt with the question as to whether the purported inclusion of an element in the employee's pay to cover holidays, which may or may or may not be taken at some point in the future, is consistent with the result envisaged by the Act in the case of Kvaerner Cementation (Ireland) Limited and Martin Treacy Determination No. DWT017. Here the Court held that such an arrangement is not consistent with the Act.
Accordingly the Court rejects the appeal and awards the Complainant compensation in the sum of €700 in respect of breaches of Section 19 of the Act.
The Rights Commissioner's decision is varied accordingly.
Signed on behalf of the Labour Court
August 9th 2010______________________
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.