FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : JOHN LOUGHNANE & SONS JOINERY WORKS LIMITED (REPRESENTED BY BURKE & COMPANY SOLICITORS) - AND - EAMONN BODKIN DIVISION : Chairman: Mr Duffy Employer Member: Mr Pierce Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner's Decision WT6763/01/JH
BACKGROUND:
2. The Company appealed the Rights Commissioner's decision to the Labour Court on the 7th of May, 2002, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 21st of August, 2002, in Galway. The following is the Court's determination:
DETERMINATION:
The worker (the respondent) was employed by the employer (the appellant) between September 1998 and early February 2001, when his employment terminated. He claimed that during his period of employment, the appellant failed to provide him with his full entitlement of annual leave under Section 19(1) of the Organisation of Working Time Act 1997 (the Act).
The respondent presented a complaint to a Rights Commissioner on 6th November 2001. The complaint was investigated by the Rights Commissioner on 16th January 2002. The appellant herein did not attend and was not represented before the Rights Commissioner.
The Rights Commissioner accepted that reasonable cause existed as to why the complaint was not presented within the six month limitation period prescribed by Section 27(4) of the Act. Accordingly, she granted an extension of time pursuant to Section 27(5) of the Act. Thus, the Rights Commissioner confined herself to investigating the complaint in so far as it related to infringements of the Act occurring after 6th May, 2000.
It is now settled in the jurisprudence of this Court that an infringement of the Act cannot occur until the expiry of the latest date on which an employer can lawfully comply with the relevant provision and it is from this date that the limitation period commences. Hence, in relation to annual leave, an infringement of the Act occurs if the leave due is not granted by the end of a six month period commencing at the close of the leave year to which it relates (30th September of each year) or on the cessor of employment if it occurs earlier. On this basis, the annual leave entitlement of the respondent in respect of the leave years 1999-2000 and 2000-2001 were taken into account. The complaint, in so far as it related to an infringement in respect of the leave year 1998-1999, is statute barred and could not be considered.
The solicitor for the appellant did not take issue with the grant of an extension of time by the Rights Commissioner and the Court is satisfied that it was properly granted.
The Appellant's Case.
The appellant claimed that the respondent received his full entitlement in each of the leave years in question. The Court was told that the respondent received two weeks' holidays in July, four days at Christmas, and Good Friday each year. In addition, it is claimed, he received a number of casual days off with pay. It was also claimed that the respondent received three days' pay, in respect of annual leave on the termination of his employment. The Appellant also claimed that the respondent received other benefits during the course of his employment which offset any additional entitlement which he had in respect of holidays.
The solicitor for the appellant told that Court that the appellant did not maintain records as required by Section 25(1) of the Act. No other documentary evidence was produced to show the amount of annual leave actually allowed to the respondent during the currency of his employment.
The Respondent's Case.
The respondent told the Court that he received a total of 15 days' holidays in the year 1999-2000 and 14 days in the year 2000-2001. He denied that he received any casual days holidays. He told that Court that in cases where took days off with pay he later worked up the hours without pay. The respondent further denied that he received any payments in respect of holidays on the termination of his employment.
Conclusions of the Court.
Section 25(4) of the Act provides, in effect, that where an employer fails to keep records under Section 25(1), in respect of his or her compliance with a particular provision of the Act, the onus of proving compliance rests with the employer. In this case, the appellant appeared uncertain as to what holidays were given and when. By contrast, the respondent was emphatic in his evidence as to the annual leave which he received. Taking the evidence as a whole, the Court is satisfied that the appellant has not discharged the onus of proving compliance with Section 19(1) of the Act in respect of the leave years 1999-2000 and 2000-2001. Accordingly, the Court finds that the complaint herein is well founded.
In the leave year 1999 to 2000 the respondent was entitled to 20 days' annual leave. He received 15 days. In the leave year 2000 –2001 he worked for 10 months and accrued an entitlement to 16.66 days annual leave. The Court accepts the respondent’s evidence that he received 14 days' leave in that year. There is thus a shortfall of 7.66 days over the two years at issue. The respondents daily rate of pay was €63.49 (£50). He therefore suffered a loss of holidays valued at €486.33.
Taking account of all the circumstances of the case, the Rights Commissioner made an award of compensation in the respondent's favour, pursuant to Section 27(3) (c) of the Act, in the amount of €635. In the Courts view, the amount awarded is appropriate having regard to the monetary loss suffered by the respondent and the inconvenience caused in processing the complaint.
Determination.
The appeal herein is disallowed and the decision of the Rights Commissioner awarding the respondent compensation in the amount of €635 is affirmed.
Signed on behalf of the Labour Court
Kevin Duffy
29th August, 2002______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.