FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : GAZBORO LIMITED T/A ACCELERATOR PRODUCTIONS - AND - BUILDING AND ALLIED TRADES' UNION DIVISION : Chairman: Mr Duffy Employer Member: Mr Keogh Worker Member: Mr Rorke |
1. Appeal against Rights Commissioner's Decision WT20/99.
BACKGROUND:
2. The dispute concerns a claim by the Union of non-payment for public holidays. The Union claims that its members are entitled to payment for Christmas Holidays. It claims that the workers had worked over 40 hours in the five weeks prior to the holidays and were let go on the evening of Friday the 18th of December, 1998.
The Union claims that the workers were entitled to payment for Christmas Day and St. Stephen's Day in accordance with Section 23(2) of the Working Time Act, 1997.
The Company rejected the claim on the basis that most of the employees were let go on the 12th of December. A small number of employees were retained until the 18th of December. The Company claims that the employees concerned ceased employment in the week ending the 18th of December and as there was no public holiday on the Monday, December the 21st, the employees were not entitled to be paid for Christmas Day or St Stephen's Day.
The dispute was the subject of a Rights Commissioner's hearing which took place on the 16th of March, 1999 The following is the Rights Commissioner's decision:-
"I have decided that the worker is entitled to be paid for the
25th of December but not for the 26th of December and I
require the Company to pay him accordingly."
The Union appealed the Rights Commissioner's decision to the Labour Court on the 22nd of March, 1999 in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 5th of July, 1999.
DETERMINATION:
Two questions of interpretation arise for determination in this case as follows:
1. What period constitutes the week ending on the day before the public
holidays in dispute for the purpose of applying Section 23(2) of the Act?,
2. Is an employee who receives an additional day's pay under Section 23(2)
of the Act, deemed to have worked on that day?
In this case the claimants ceased to be employed on the 18th of December, 1998. They are claiming an entitlement to be paid in respect of the 25th and the 26th of December. Such an entitlement would only arise if their employment ceased during the week ending on the day before the public holidays and they worked for the employer in the four weeks preceding that week.
As the Court interprets the wording of Section 23(2)(a) of the Act, the week ending at midnight on the 24th of December commenced at midnight on the 18th of December. Since the claimants worked for the employer during the four weeks preceding that week they are entitled to compensation in an amount equal to an additional day's pay in respect of the 25th of December.
The week ending on the 25th of December commenced at midnight on the 19th of December. Since the claimants ceased to be employed on the 18th of December they have no entitlement under the Act in respect of the 26th of December.
However, the Union contends that because the claimants are entitled to be paid an extra day's pay in respect of the 25th of December, they should be deemed to have worked an extra day, thus bringing their termination date within the week ending on the day before the 26th of December. In the Court's view this submission is misconceived.
Section 22(2) of the Act provides thattime offgranted to an employee under Section 21 in respect of the pubic holiday is to be regarded as time worked for the purpose of that Section. In this case the claimants are not entitled to time off under Section 21 in respect of the 25th of December but to compensation in an amount equal to an additional day's pay under Section 23(2).
For the reasons set out above the Court determines that the decision of the Rights Commissioner is correct and that the appeal is dismissed.
Signed on behalf of the Labour Court
Kevin Duffy
13th July, 1999______________________
L.W./D.T.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Larry Wisely, Court Secretary.