FULL RECOMMENDATION
SECTION 28 (1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : MEADES BAR LIMITED T/A VICTORIA CAFÉ (REPRESENTED BY MR MICHAEL MC NAMARA B.L.,INSTRUCTED BY MC HALE MULDOON, SOLICITORS) - AND - MS LAYALA SMALLI (REPRESENTED BY FREDERICK V. GOSNELL, SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Marie Worker Member: Ms Tanham |
1. An appeal of an Adjudication Officer's Decision No: ADJ-00004906.
BACKGROUND:
2. The Employer appealed the Decision of the Adjudication Officer to the Labour Court on the 10 July 2017 in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 7 November 2017. The following is the Decision of the Court.
DETERMINATION:
This is an appeal by Meades Bar Limited t/a Victoria Café against the Decision of an Adjudication Officer under the Organisation of Working Time Act 1997 (the Act) where Ms Layala Smalli claimed that her former employer had breached the Act when she was not provided with public holiday entitlements for seven public holiday which fell between 23rd October 2015 and 2nd July 2016 and she was not paid her outstanding entitlement to annual leave on the cessor of her employment on 2nd July 2016. The Adjudication Officer held that the complaint was well-founded and awarded her six days’ pay for annual leave and three days’ pay for public holidays.
For ease of reference the parties are given the same designation as they had at first instance. Hence Ms Layala Smalli will be referred to as “the Complainant” and Meades Bar Limited t/a Victoria Café will be referred to as “the Respondent”.
Background
The Complainant worked as a bar waitress in the Respondent’s Wine Bar from 23rd October 2015 until 2nd July 2016. She worked 40 hours per week and was paid €400.00 per week.
Cognisable Period Covered by the Claims
The Complainant referred her claim under the Act to the Workplace Relations Commission on 29th August 2016. By application of the time-limit provided for at section 41(6) of the Workplace Relations Act, 2015 the cognisable period for the purpose of the public holiday claim is confined to the six-month period ending on the date on which the complaint was presented to the Workplace Relations Commission, therefore, the cognisable period covered by the claim is the six-month period from 1st March 2016 until 2nd July 2016 (the date of termination of employment). Lavan J. inRoyal Liver Assurancev Macken & Others,High Court unreported 15th November 2002,held that an infringement of Section 19 of the Act crystallised at the end of the leave year to which it relates. In addition, Lavan J. found that each breach of the Act in respect of an employee’s entitlement to receive pay for working on a public holiday was a discrete contravention of the Act and a complaint in respect of that offence must be brought within six months of its occurrence. In so far as the within complaint relates to the Respondent's failure to pay the Complainant in respect of public holidays prior to those dates, it is statute-barred and, to that extent, it is not cognisable by the Court.
However, for the purposes of the claimed outstanding annual leave, the Court must examine the issue in the context of the relevant leave year. The relevant leave year is defined by Section 2(1) of the Act, it provides that a leave year is a year commencing on 1st April. As the six-month period referred to in the complaint under section 44(3) of the Workplace Relations Act 2015 straddles two different leave years (1st April 2015 – 31stMarch 2016 and 1st April 2016 – 31st March 2017), hence, any contravention of the Act arising from the Respondent’s failure to pay the Complainant in respect of outstanding annual leave on the cessation of her employment accrued within the period, i.e. from 23rd October 2015 to 2nd July 2016. It follows that the claim, in so far as it relates to a failure to provide the Complainant with her entitlement to annual leave in the leave year ending on 31stMarch 2016, and her accrued outstanding entitlement to leave in leave year commencing on 1stApril 2016 up to the date on which her employment terminated, is in time.
Public Holidays
The Complainant claimed that she had an outstanding entitlement to seven public holidays, the last Monday in October and Christmas Day in 2015; New Year’s Day; St Patrick’s Day; Easter Monday; the first Monday in May and the first Monday in June 2016. The Court’s jurisdiction is confined to examining the complaints in respect of each public holiday which fell within the cognisable period. As the last Monday in October 2015, Christmas Day in 2015 and New Year’s Day 2016 are all outside the cognisable period, therefore that aspect of the claim is statute-barred.
On behalf of the Respondent, Mr Colm Lyons the Proprietor gave evidence. He said that the wine bar was not open on Mondays and the Complainant was paid in full for each of the public holidays. The Complainant in her evidence stated that she had not received extra pay in respect of those weeks when a public holiday fell.
The Respondent did not maintain records in the statutory form as required by section 25 of the Act. Consequently, in accordance with subsection (4) of that section the Respondent bears the burden of proving that the Act was not contravened.
The Respondent submitted a list of dates and payments made to the Complainant. The accuracy of this document was disputed by the Complainant. However, the fact that the Complainant was never provided with a statement of her terms and conditions of employment or with payslips must significantly diminish the probative value of the information furnished on the crucial question of whether she was in fact provided with entitlements in respect of the four public holidays encompassed by the cognisable period covered by the claim. Furthermore, as the Court finds that Mr Lyons testimony was unsupported by any documentary records or other corroborative evidence of any kind, the Court cannot accept his evidence as going far enough to rebut the direct evidence of the Complainant. Accordingly, the Court must prefer the evidence of the Complainant and hold that the Respondent was in breach of Section 21 of the Act.
Annual Leave
The Complainant claimed that she had not received any annual leave during the course of her employment with the Respondent and claimed compensation on cesser of her employment. The Respondent’s legal representative submitted that the Complainant’s basis rate pay of €10.00 per hour was inclusive of a payment in respect of annual leave and therefore submitted that she received her entitlement under the Act.
The right to paid annual leave is provided for by Article 7 of Directive 93/104/EC concerning certain aspects of the organisation of working time. Section 19 of the Act gives effect to Article 7 of the Directive and must be interpreted so as to achieve the result envisaged by the Directive.
Article 7 of Directive 93/104/EC on the Organisation of Working Time (the Directive) provides that the prescribed minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated. The Act was enacted to transpose that Directive and in accordance with settled law it must be interpreted and applied so as to achieve the result envisaged by the Directive (C – 14/83Von Colson and Kamann v Land Nordrhein-Westfalen[1984] ECR 1891). Article 7 reflects the fact that the Directive is a health and safety measure and the requirement to provide employees with a minimum amount of paid annual leave per year is a health and safety imperative. This was made clear by the ECJ in C – 173/99R v Secretary of State for Trade and Industry ex-parte Broadcasting, Entertaining and Cinematography and Theatre Union[2001] IRLR 559.
It is, moreover, settled beyond argument that the purported inclusion of an amount in a workers’ wages to provide for annual leave cannot constitute sufficient compliance with the Directive and, consequently, with the Act. That was made clear by the Court of Justice of the European Union (CJEU) in joined Cases C-131/04 and C-257/04,C.D. Robinson Steele and OrsECLI:EU:C:2006:177. At par 63 of the judgment the Court said: -
- It follows from all the foregoing considerations that the reply to the first question referred in each of Cases C-131/04 and C-257/04 and to the fourth question referred in Case C-257/04 must be that Article 7 of the directive precludes the payment for minimum annual leave within the meaning of that provision from being made in the form of part payments staggered over the corresponding annual period of work and paid together with the remuneration for work done, rather than in the form of a payment in respect of a specific period during which the worker actually takes leave.
It is clear from the foregoing that the right of workers to paid annual leave is a fundamental social right in the law of the Community. The imperative pursued by the Directive, and consequently by domestic law, is that workers receive holidays as periods of rest and that they are paid specifically in respect of such periods at the time the leave is taken and in advance.
During the period of her employment with the Respondent the Complainant worked for 36 weeks and thereby accrued 15.2 hours’ annual leave at the date of the termination of her employment. In the document furnished to the Court by the Respondent, it purports to show that the Complainant was paid a payment of €800 at the termination of her employment, which Mr Lyons contended was payment of one week’s annual leave and one week’s pay. However, the Court has already found that it cannot accept his evidence as going far enough to rebut the direct evidence of the Complainant.
The Complainant’s claim is for compensation in respect of annual leave pursuant to section 23 of the Act. Any such entitlement would have accrued on the cessor of her employment. The Court calculates that the Complainant was due €1152.00 by way of cessor pay on the termination of her employment. Based on the Complainant’s evidence before it, the Court is satisfied that she was not paid that amount in contravention of section 23 of the Act.
Determination
Based on the findings above, the Court finds that the complaints under Sections 21 and 23 of the Act are well- founded. Therefore, the Court varies the Decision of the Adjudication Officer and awards the Complainant the sum of €320.00 in respect of the breach of Section 21 of the Act and the sum of €1152.00 in respect of the breach of Section 23 of the Act.
The redress available to a successful complainant under the Act is governed by section 27(3) thereof, as follows: -
- (3) A decision of a rights commissioner under subsection (2) shall do one or more of the following:
- (a) declare that the complaint was or, as the case may be, was not well founded,
- (c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the employee's employment, and the references in the foregoing paragraphs to an employer shall be construed, in a case where ownership of the business of the employer changes after the contravention to which the complaint relates occurred, as references to the person who, by virtue of the change, becomes entitled to such ownership.
The Respondent is directed to pay the Complainant the sum of €2,000.00 compensation which is inclusive of the outstanding annual leave and public holidays payments as found by the Court above. For the avoidance of doubt this amount is not in the nature of remuneration and should not be treated as such for the purposes of tax or other deductions.
The decision of the Adjudication Officer is set aside and substituted with the terms of this Determination.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
CR______________________
27 November, 2017Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.