FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : TAYTO LIMITED (REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER DIVISION : Chairman: Mr Flood Employer Member: Mr McHenry Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner's Decision WT295/98GF.
BACKGROUND:
2. The worker was employed by the Company as a merchandiser from October, 1994 to March, 1998 and claims she worked a minimum of 12 hours per week for 52 weeks of the year. During her employment with the Company the worker states that she received no holiday pay or pay for Bank Holidays which she claims she was entitled to.
The Company employs approximately 130 merchandisers. It claims that the very nature of the merchandising job makes it impossible to accurately monitor/record the hours worked. However, the Company estimates that the worker worked no more than 7 - 7½ hours per week. Merchandisers are charged with visiting their designated stores, removing product from the warehouse and stocking/merchandising products on the shelves unsupervised and at their own pace. Furthermore, it is not uncommon for individual merchandisers to work for a number of different companies. The worker concerned was employed by at least one other company during the period in question. It was the Company's view that the worker was not covered by the Working Time Act, and therefore, had no entitlement to holiday pay.
The worker submitted her claim to a Rights Commissioner under the Organisation of Working Time Act, 1997. The Rights Commissioner issued his Decision on the 17th of December, 1998, as follows:-
"The Supreme Court has recently ruled in a similar case
'Henry Denny & Sons (Ireland) Limitedtrading as Kerry Food and the Minister for Social Welfare.'
I am satisfied that the claim is well founded. The complainant is
very clearly a worker who comes under the control of the Company
and the supermarkets and in my opinion is entitled to the
protection of the Organisation of Working Time Act, 1997 and I
order that she be paid her outstanding claim for holiday pay."
The Company appealed the Rights Commissioner's Decision but subsequently withdrew the appeal following clarification.
The Rights Commissioner issued the clarification on the 31st of March, 1999.
The worker 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 the 29th of July, 1999. The Court heard the appeal on the 6th of August, 1999.
DETERMINATION:
The Court, having considered the written and oral submissions upholds the Rights Commissioner's findings and decision in WT295/95GF dated the 17th of December, 1998.
While accepting that the Rights Commissioner has accepted that the Company proposals comply with the Leave Regulations in the Working Time Act,1997, the Court recommends that the Company responds postively to the particular issues raised by the claimant on a once off basis.
Signed on behalf of the Labour Court
Finbarr Flood
24th September, 1999______________________
L.W./D.T.Chairman
NOTE
Enquiries concerning this Determination should be addressed to Larry Wisely, Court Secretary.