FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : LEOPARD SECURITY CRUMLIN LIMITED - AND - VINCENT SWAN DIVISION : Chairman: Mr Duffy Employer Member: Mr Keogh Worker Member: Ms Ni Mhurchu |
1. Appeal against a Rights Commissioners Decision WT5988/01/GF.
BACKGROUND:
2. An appeal has been lodged by the Company against the Rights Commissioner's Decision WT59988/01/GF.
Decision
"I provided the claimant with a copy of the respondent's defence dated September 19th, 2001. He disputed it in its entirety. In the absence of the employer, wages records, employment contracts etc. I have decided that this complaint is well founded.
Therefore, I require his employer to pay him 20 days' holidays (1 year) a total of euro 1508.45. I also require his employer to pay him one weeks wages in compensation euro 377.11 forthwith".
On the 20th of December, 2001, the Company appealed the Rights Commissioner's Recommendation to the Labour Court and the Court heard the appeal on the 29th of January, 2002.
DETERMINATION:
The claimant told the Court that he commenced employment with Leopard Security Limited (the employer) from July, 1999, until 20th April, 2001, when his employment terminated. He made a complaint to a Rights Commissioner alleging that the employer failed to grant him annual leave in accordance with Section 19 of the Organisation of Working Time Act, 1997 (the Act).
The Rights Commissioner found that the complaint was well founded and awarded the claimant compensation in respect of the loss of 20 days' leave for the leave year 1st of April, 2000, to 31st March, 2001. The Rights Commissioner awarded additional compensation in the amount of euro 377.11.
At the hearing of the appeal, the employer (who did not appear and was not represented before the Rights Commissioner) told the Court that the claimant had received 5 days' annual leave in the leave year 2000 - 2001. He accepted that a further 15 days was due but claimed that the claimant had left without giving adequate notice and that money was being withheld on that account.
The claimant denied that he resigned from his employment. He claimed to have been dismissed. He accepted that he had received 5 days' annual leave in 2000 - 2001, but contends that the compensation awarded by the Rights Commissioner is inadequate. In that regard, the claimant told the Court that he had not received any annual leave for the leave year 1999 - 2000, despite having asked the employer on a number of occasions for holidays. He said that on each occasion he had been told that he could not have leave at the time requested but could have it some other time. For this reason, he had not made a complaint earlier.
The employer denied that the claimant had not received holidays in the year 1999 - 2000, but did not produce any records or other evidence to rebut the claimant's contention.
Conclusions of the Court.
The Court can only be concerned with the issue before it, namely the claimant's complaint that he did not receive holidays due to him under the Act. It is clear that the claimant is due 15 days' leave in respect of the leave year 2000 - 2001. Furthermore, the Court accepts the claimant's evidence that he did not receive any annual leave in respect of the period between July, 1999, and 31st March, 2000.
Section 20(1)(c) of the Act provides that annual leave must be granted within the leave year to which it relates, or with the consent of the employee, within six months thereafter. Thus, the latest date on which the employer could have fulfilled the obligation to grant leave in respect of the leave year ending 31st March, 2000, was 30th September, 2000.
It is clear that the complaint, in so far as it relates to the leave year 1999 - 2000, was made to the Rights Commissioner outside the period specified in Section 27(4), namely, 6 months from the date of the contravention to which it relates. However, the Court accepts the claimants evidence that when he requested leave, he was told that he would receive it but at a later time. In these circumstances, the Court is satisfied that there is reasonable cause as to why the time should be extended by a further 12 months in accordance with Section 27(5) of the Act. In granting that extension, the Court can entertain the complaint in respect of the leave year 1999 - 2000, which it finds to be well founded.
Determination
The Court determines that the claimant was due annual leave (exclusive of 5 days granted in 2000 - 2001) as follows:
PeriodNo. Days
July 1999 - March 2000 15
April 2000 - March 2000 15
April 2001 (3 weeks) 1.66
Total 31.66
The Court awards the claimant compensation in respect of this loss in the amount of euro 2,387.79 in respect of this loss. The Court further affirms the Rights Commissioner's award of additional compensation in the amount of euro 377.11 for the failure of the employer to grant annual leave on time. The total award to the claimant is euro 2,764.90.
The Rights Commissioner's recommendation is varied accordingly.
Signed on behalf of the Labour Court
Kevin Duffy
7th February, 2002______________________
HMCD/CCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Helena McDermott, Court Secretary.