FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : PRIME NEWS LIMITED - AND - MS LAURA PATCHELL DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Keogh Worker Member: Mr. Somers |
1. Appeal against Rights Commissioner's Decision WT4845/01/GF.
BACKGROUND:
2. The appeal concerns a worker who commenced employment on the 13th of June, 1999, and which terminated on the 2nd of March, 2001. The worker alleges that she did not receive any holiday pay while employed by the Company.
The Company rejected the claim and stated that the worker's holiday pay was included and was part of her weekly pay.
The worker referred the dispute to a Rights Commissioner for investigation. On the 3rd of July, 2001, the Rights Commissioner issued his Decision as follows:-
- "In the absence of the employer's wage records etc., I find that the claimant to be a credible witness and I decide that her complaint is well founded. I require her employer to pay her 4 weeks' annual holidays and 9 public holidays at £34.00 (43.17 Euro) per day".
DETERMINATION:
The Court has taken account of the written and oral submissions of the parties. The employer indicated to the Court that for ease of administration, the Company has operated a policy of paying holiday entitlements as they arise on a weekly basis, and that this procedure is clearly set out in the terms of employment and explained to all prospective employees. Employees are given the option to elect not to have holiday pay entitlement paid on a weekly basis and to have it held over and paid when taking holidays. Invariably the employees have opted for the inclusive rate. Employees who worked on public holidays received double time but did not receive any payment for Public Holidays not worked.
Part 111 of the Organisation of Working Time Act, 1997, provides employees with an entitlement to four weeks' paid annual leave (and proportionately less where the employee has less than a full year's employment) and to paid leave, or additional payments, in respect of public holidays. The calculation and timing of the paid leave is also covered by Part 111.
Section 23 of the Act provides for payment in lieu of annual leave not taken only on cessation of employment when compensation may be paid to an employee when there is outstanding annual leave due to an employee.
This Court has pointed out to the employer that the provisions of the Act lay an onus on the employer to ensure that the employees receives the requisite period of paid leave and that this cannot be offset by the payment of an element in the employee's basic rate to cover holidays which the employee may or may not decide to take in the future.
Section 37 of the Act provides for the voidance of certain provisions in a contract, which purport to limit the application of, or are inconsistent with the Act: -
"Save as expressly provided otherwise in this Act, a provision in an agreement (whether a contract of employment or not and whether made before or after the commencement of the provision concerned of this Act) shall be void in so far as it purports to exclude or limit the application of, or is inconsistent with, any provision of this Act."
This issue has been addressed by the Court in the case of Kvaerner Cementation (Ireland) Limited v Mr. Martin Treacy, Determination No. DWT017 where the Court held that certain elements in the employee's basic pay, which were ostensibly to cover holiday pay was in reality an allowance in lieu of holidays. In that case, the Court referred to the combined effect of Section 20(2)(a) and 20(2)(b) which were that holiday pay must be paid to the employee in advance of his or her taking the leave at the normal weekly rate. Normal weekly pay is defined by Regulation 3 of the Organisation of Working Time (Determination of Pay for Holidays) Regulations (S.I. 475 of 1997) as the rate paid to the employee in respect
of normal working hours in the week immediately before the leave is taken, or, where it varies, by reference to the average pay in the thirteen weeks immediately before the leave is taken.
As was concluded in that case, this Court takes a similar view in this case that the inclusion of an element in basic pay designed to cover holiday pay is inconsistent with the result which Article 7 of the Directive and Part 111 of the Act is intended to achieve. It follows that the term in the employee's contract of employment, albeit of a voluntary nature, which purports to make such a provision, is void by operation of Section 37 of the Act.
Determination
The worker was employed on a part time basis from the 13th of June, 1999, until the 2nd of March, 2001, on an average weekly rate of euro 133.32 working four days per week. As no paid annual leave has been given for this period, in accordance with Part 111 of the Organisation of Working Time Act, 1997, the Court determines that she should be paid euro 1136.58 in respect of the 34.1 outstanding days annual leave. In respect of her outstanding public holiday entitlement, the Court determines that she should be paid the sum of euro 239.98 in respect of nine public holidays, which she did not work. This makes a total of euro 1376.56.
The appeal of the Rights Commissioner's recommendation is, therefore, upheld, and the recommendation is hereby amended.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
8th January, 2002______________________
LW/CCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Larry Wisely, Court Secretary.