FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : KENNEDY'S CAFE BAR LIMITED - AND - A WORKER DIVISION : Chairman: Mr Duffy Employer Member: Mr Keogh Worker Member: Mr. Somers |
1. Appeal of Rights Commissioner's Decision WT/525/99/JH.
BACKGROUND:
2. The worker concerned was employed by Kennedy's Cafe Bar from the 14th of July, 1999 to the 1st of October, 1999. In late 1999 she submitted a complaint to a Rights Commissioner in respect of holiday pay for investigation under the Organisation of Working Time Act, 1997. The Rights Commissioner's Background and Decision are as follows:-
"The worker was employed on the waiting staff of Keyside Cafe from July, 1999 to 1st October, 1999. During that time she was a regular part-time worker and was employed for 264.75 hours in total. She worked one Public Holiday i.e. August and received a normal days pay.
On termination of her employment, she requested her P45 and her holiday pay. She did receive her P45 but was told by Mr. Kennedy that as a part-time worker she was not entitled to holiday pay.
This is a valid claim. The behaviour of the employer and his failure to honour his obligations are totally unacceptable. The worker should receive 8% of her hours worked by her hourly rate of 4.75 per hour = £100.61. In addition she should receive 4 hours x 7.75 for the August Public Holiday = £19 owing to the failure of the employer to pay the entitlements due she should receive additional amount of £100 in compensation.
The Rights Commissioner's Decision was appealed by the Company to the Labour Court on the 22nd of March, 2000. The Court heard the appeal on the 25th of July, 2000 in Drogheda.
DETERMINATION:
It is noted that the Employer did not attend the hearing before the Rights Commissioner. In consequence she reached her decision on the uncontested evidence of the claimant. The claimant was of the belief that her rate of pay was £4.75 per hour and in the absence of any other information the Rights Commissioner calculated the amount due by way of holiday pay using that rate.
In the course of this appeal the claimant accepted that her hourly rate of pay was, in fact, £4.20 per hour. She worked a total of 264.75 hours in the employment and her entitlement in respect of annual leave is 8% of those hours x £4.20 = £88.96. The claimant also worked one public holiday in respect of which she is entitled to an extra days pay calculated at 4 hours x 4.20 = £16.80.
The total amount due to the claimant under both headings is £105.76. The Court varies the amount awarded by the Rights Commissioner in respect of annual leave and public holidays to that amount.
The Court has also considered the employer's appeal against the decision of the Rights Commissioner to award compensation to the claimant under Section 27(3)(c) of the Organisation of Working Time Act, 1997, in the amount of £100. In his evidence to the Court the employer accepted that he knew the claimant was entitled to holiday pay, yet he made no attempt to pay the amount due or to resolve any differences as to the amount owing. The Court is satisfied that had the claimant been offered payment calculated at the correct rate it would have been accepted.
When the claimant initiated a complaint under the Act the employer failed to attend the Rights Commissioner hearing. He subsequently appealed to this Court. As a result the matter has been protracted over a period of approximately ten months. In consequence the claimant has suffered inconvenience and distress in seeking to resolve this matter over a prolonged period. In the Court's view this is a case in which it is appropriate to award compensation under Section 27(3)(c) of the Act. However, the Court considers that the amount awarded should be increased to £150.
The Court, therefore, directs the employer to pay the claimant £105.76 in respect of holiday pay together with compensation in the amount of £150, making a total of £255.76.
Signed on behalf of the Labour Court
Kevin Duffy
8th August, 2000______________________
FB/CCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Fran Brennan, Court Secretary.