FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : PRIME NEWS LIMITED TRADING AS SPAR KIMMAGE & THE ROSEBUD - AND - TANYA PATCHELL DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Pierce Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner's Decision WT5503/01/JH.
BACKGROUND:
2. The employee concerned was employed as a part-time sales assistant from the 27th of September, 2000. She commenced maternity leave in March, 2001, and notified the Company that she was terminating her employment on the 12th of July, 2001.
The worker submitted a claim for holiday pay and public holiday pay to a Rights Commissioner under the Organisation of Working Time Act, 1997. The Rights Commissioner investigated the complaint and issued her Decision on the 11th of October, 2001, as follows:
“Decision
On the basis of the evidence presented by Tanya Patchell I am satisfied that she has a valid claim. Her employer breached the Organisation of Working Time Act in respect of the manner of payment of holidays and the failure to pay for public holidays not worked. Tanya Patchell is to receive £700 nett (€889) Euros compensation in respect of the breaches of the Organisation of Working Time Act by Prime News Ltd. T/A Spar Kimmage.”
On the 22nd of November, 2001, the Company 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 27th of November the worker appealed the Decision to the Labour Court for implementation. The Court heard the appeal on the 14th of March, 2002, the earliest date suitable to the parties.
COMPANY'S ARGUMENTS:
3. 1. Following a previous Labour Court Determination on a similar claim, the Company will not argue the issue of whether the claimant received holiday pay or not. The Company is appealing the Rights Commissioner’s Decision on the grounds that the award is excessive. The Company calculates that the employee may be due in the range of €397.67 to €460.45.
2. The claimant chose to be paid the rate of €5.08 per hour, which included holiday pay, in lieu of paid holidays and a lower hourly rate of pay. She worked an average of 20.61 hours per week over 26 weeks, which averaged approximately €104.65 per week. The Company believes that she is due a payment of €334.89 for holiday pay.
3. The claimant was paid double time for working on two public holidays. She did not receive payment for three public holidays that she did not work. The amount due to her would be €62.78. The Company requests the Court’s direction on payment for the public holidays during the maternity leave period.
WORKER'S ARGUMENTS:
4. 1. The worker received no holiday pay during the course of her employment. She was advised that her contract of employment was illegal, as she could not be paid holiday pay in her weekly wage.
2. The employee is claiming payment for public holidays, as she was only paid for two public holidays which she worked. Her weekly wage fluctuated between €114.28 and €139.67, depending on the number of hours worked.
DETERMINATION:
The employee was employed from 27th of September, 2000, to 12th of July, 2001, a period of 41 weeks on a part time basis. Her average weekly pay was €105. In accordance with Part 111 of the Organisation of Working Time Act, 1997, the Court determines that her annual leave entitlement for this period amounted to €345, and her public holiday entitlement amounted to €158 for the six public holidays not worked and not paid by the Company.
Considering the overall circumstances of this case, the Court determines that the employer should pay a sum of €550 in settlement of these outstanding claims.
The Company's appeal of the Rights Commissioners decision is therefore upheld, and the decision is hereby amended.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
4th April, 2002______________________
D.G./MB.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Dympna Greene, Court Secretary.