FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : BRIDEBANK MUSHROOM FARMS LIMITED - AND - KATHLEEN LEWIS DIVISION : Chairman: Ms Jenkinson Employer Member: Mr McHenry Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioner's Decision WT2173/00/GF.
BACKGROUND:
2. The employee concerned was employed as a mushroom picker by the Company for approximately three years. She submitted a claim to a Rights Commissioner under the Organisation of Working Time Act, 1997 for payment for holidays and public holidays. The Rights Commissioner issued his Decision on the 6th of November, 2000, as follows:
"Findings and Decision
On balance I must come to the conclusion the employer is in breach of the act. However, the vast portion of the complaint cannot be dealt with because of the time factor. I am prepared to use my discretion and allow the claim to cover a period of 1 yr. I recommend she be paid 20 days annual leave and 9 public holidays."
The Company appealed the Decision to the Labour Court on the 14th of December, 2000, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. The Court heard the appeal in Cork on the 11th of April, 2001, the earliest suitable date.
COMPANY'S ARGUMENTS:
3. 1. The Company accepts the Rights Commissioner's Decision concerning payment for annual leave.
2. The Company disputes the Decision regarding payment for public holidays, as the worker was paid the basic rate plus 50% for working on public holidays. This was the rate agreed with all of the pickers.
WORKER'S ARGUMENTS:
4. 1. The worker worked an average of forty hours per week from March, 1997, until July, 2000. She did not receive holiday pay, sick pay or payment for public holidays.
2. The employee enjoyed working for the Company but could no longer work there without payment for holidays.
DETERMINATION:
Having considered all aspects of this appeal the Court decides that the appellant should be paid 20 days annual leave and 5 days pay in respect of outstanding public holiday entitlements. In view of the difficulty in determining the actual rate of pay paid related to the hours of work, the Court recommends that the employer should pay £900 ( 1142.76 Euros), this payment is to include compensation as provided for under Section 27 (3) (c) of the Organisation of Working Time Act, 1997.
The appeal is hereby disallowed.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
28th May, 2001______________________
D.G.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Dympna Greene, Court Secretary.