FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : BUSINESS INFORMATION BUREAU - AND - MS. DOLORES RYAN DIVISION : Chairman: Mr Duffy Employer Member: Mr Pierce Worker Member: Mr O'Neill |
1. Appeal by the Company against Rights Commissioner's Decision No. WT 68/99.
BACKGROUND:
2. The appeal concerns a worker who was employed by the Company from the 25th of August, 1997 to the 20th of May, 1998. It relates to a claim by the worker that she is entitled to arrears of holiday pay amounting to £380.00 under the terms of the Organisation of Working Time Act, 1997. The Company rejected the claim The dispute was referred to a Rights Commissioner for investigation in April, 1999. On the 20th of April, 1999 the Rights Commissioner issued his findings and decision as follows:-
"The claim relates to holidays and I have established that the amount
owed comes to the sum of £380.00 for the period she was employed by
the Company.
The complaint is well founded and I decide that she be paid the amount
forthwith."
On the 5th of May, 1999 the Company appealed the Rights Commissioner's decision to the Labour Court. The Court heard the appeal on the 17th of June, 1999.
DETERMINATION:
This is an appeal by the employer against the decision of a Rights Commissioner that the claimant is entitled to the sum of £380.00 in respect of holiday pay due to her under the Organisation of Working Time Act, 1997. The employer did not attend the Rights Commissioner hearing and the only evidence available to the Rights Commissioner was that of the claimant. The employer then appealed to the Court.
The claimant was employed for a period of nine months. She was entitled to 15 days annual leave in respect of her period of employment with the employer. It is accepted by her that she received 7 days annual leave at Christmas, 1998 and another 1.5 days in February, 1999.
The employer told the Court that the claimant had a pattern of taking two days off work per month for which she was paid and had 3 other leave days, rather than 1.5 days. After the third month the employer treated these absences as part of the claimant's annual leave and so advised her. On this basis it was submitted that she received an additional 12 days annual leave. The claimant told the Court that these absences were for medical reasons and she regarded them as sick leave. She denied having agreed to treat these absences as part of her holiday entitlement.
Having carefully considered the submissions of the parties the Court has concluded on the balance of probabilities that the absences in question, after the third month of the claimant's employment, were properly regarded as annual leave. Thus, the claimant received a total of 20.5 days annual leave. This exceeds her statutory entitlement. The evidence regarding these additional days was not before the Rights Commissioner and could not have been considered by him in formulating his decision.
Based on its conclusions, the Court determines that the complaint herein is not well founded. Accordingly, the employers appeal is allowed and the decision of the Rights Commissioner is set aside.
Signed on behalf of the Labour Court
Kevin Duffy
28th June, 1999______________________
T.O'D./D.T.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Tom O'Dea, Court Secretary.