FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : BARNEY WALSH (T/A ENVIRONMENTAL RESEARCH AND DESIGN ASSOCIATES) - AND - A WORKER DIVISION : Chairman: Mr Flood Employer Member: Mr Pierce Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner's Decision WT 58/00/JH.
BACKGROUND:
2. The dispute concerns a clerical worker who was employed by the Company from 26th October, 1998 until 23rd July, 1999, on a rate of £5 per hour, 20 hours per week. The worker claimed that she had discussed the matter of holiday pay with her employer during the course of her employment but agreed not to pursue the issue at the time. On leaving the employment, she again raised the issue of holiday pay. She received all moneys owing to her, on the termination of her employment, except holiday pay. She, subsequently, sought payment of the outstanding holiday pay without success. The worker referred the matter to a Rights Commissioner for investigation. The Rights Commissioner concluded that the claim was valid, that the employer had only commenced paying the worker for public holidays after the matter was raised by her and that no effort was made by the employer to settle the claim. The Rights Commissioner decided that the worker should be awarded the full amount claimed, i.e., £364.80. The Decision was appealed, by the Company, to the Labour Court, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. The Court heard the appeal, in Letterkenny, on the 12th October, 2000.
COMPANY'S ARGUMENTS:
4. 1. The worker did not mention holiday pay during the time of her employment, only giving a break-down at time of her leaving.
2. The worker was the only employee and was aware that her employer would not be open to leaving himself such a large bill at the end of an employee's stay. She was responsible for doing the books and was aware that she was employed on the Company overdraft and that her employer was not actually being paid himself.
3. The worker was part-time and there was no contract of employment.
4. The worker's performance was, to some extent, erratic and her employer was tolerant and flexible. Given the difficulty of running a business on a shoe-string, the worker's claim seems a poor return for the employer's flexibility in her regard.
5. The employer's position was not represented at the Rights Commissioner's investigation as he could not attend due to illness.
WORKER'S ARGUMENTS:
3. 1. During her employment, the worker was paid for some, but not all public holidays on which she did not work. Although she did have some time off, at the discretion of the Company, she was not paid for those periods (details supplied to the Court).
2. Prior to her termination, the worker informed the employer of payment due for holidays/bank holidays. As she was terminated a week before her notice had elapsed, she, being the bookkeeper, deducted tax/PRSI from her wages on the amount which was unpaid, but which she fully expected to receive.
3. The worker provided a detailed account of the moneys owing to her at the time of her termination. She pursued the matter with the employer, subsequently, to no avail. Accordingly, she was left with no alternative but to refer the matter for investigation by a Rights Commissioner.
DETERMINATION:
The Court, having considered the written and oral submissions of the parties, rejects the Company's appeal. Accordingly, the Court upholds the Rights Commissioner's Decision.
Signed on behalf of the Labour Court
Finbarr Flood
24th October, 2000______________________
MK/MKChairman
NOTE
Enquiries concerning this Determination should be addressed to Michael Keegan, Court Secretary.