FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : THE STAND HOUSE HOTEL - AND - ENDA DELANEY DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Mr O'Neill |
1. Appeal of Rights Commissioners Decision WT19073/04/LM
BACKGROUND:
2. The worker was employed as a chef with the Company from February 2001 to April 2003. The dispute before the Court concerns a claim by the worker for monies owed in respect of ten days holidays for 2001. The worker contends that holidays were sought but refused due to inadequate staffing at the time. The worker sought payment for the ten days holidays upon leaving the employment. The Company rejects the claim on the basis that the number of days sought are incorrect and payment was made to the worker to cover the untaken days.
- The matter was referred to a Rights Commissioner for investigation and recommendation.The Company did not attend the Rights Commissioner's hearing. The findings and recommendation issued on the 6th July, 2004 as follows:
- “On the uncontested evidence of the claimant's representative, I award the claimant €1,290 in respect of two weeks holiday pay owed. This figure is based on the annual salary of €31,000 and is subject to PRSI and Income Tax Deductions..”
- The worker was named in the Rights Commissioner’s Recommendation.
The Company appealed the recommendation and on the 26th July, 2004, referred the issue to the Labour Court, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 12th October, 2004.
- “On the uncontested evidence of the claimant's representative, I award the claimant €1,290 in respect of two weeks holiday pay owed. This figure is based on the annual salary of €31,000 and is subject to PRSI and Income Tax Deductions..”
COMPANY'S ARGUMENTS:
3. 1. Payments were made over and above normal gross pay in 2001 to compensate the worker for the holidays not taken at the time.
2. The worker did not raise the issue at the time of leaving the employment nor at any time since until notification of the Rights Commissioner's hearing was received by the Company.
WORKER'S ARGUMENTS:
4. 1. The worker agreed to take reduced annual leave to facilitate the Company and claims that it is particularly unfair that the Company is unwilling to recognise this.
2. The worker regularly worked over and above normal hours in a working week and did not at any time receive overtime payments nor were any sought. The worker is seeking recompense for the holidays sought.
DETERMINATION:
The Court has considered the employer's appeal of the Rights Commissioner's decision. The claim by the worker is for monies owed in respect of ten days holidays carried over from 2001. The Company maintains that the number of days sought are incorrect and that payment was made at the termination of employment to compensate for outstanding annual leave.
The Company’s position is that payments were made over and above his normal gross pay to compensate for any outstanding leave at the time. It states that additional payments to the value of 8.7 days were paid during the period 11th July 2002 to 26th December 2002.
The right to paid annual leave is provided for by Article 7 of Directive 93/104/EC “concerning certain aspects of the organisation of working time”. Section 19 of the Organisation of Working Time Act gives effect to Article 7 of the Directive and must be interpreted so as to achieve the result envisaged by the Directive.
The nature and scope of the right which Article 7 of the Directive was intended to confer was considered by the ECJ in caseC-173/99, Broadcasting, Entertaining, Cinematographic and Theatre Union (BECTU) v Secretary of State for Trade and Industry, [2001] IRLR 560.In a wide ranging opinion delivered on 8th February 2001, Advocate General Tizzano traced the legislative history of Article 7 and concluded that the right to paid annual leave constitutes a fundamental social right which is characterised in the Directive as an automatic and unconditional right granted to every worker.
In the Court’s view what is required by Article 7 of the Directive and by the Act, is not only that workers receive the requisite leave, but that they be unconditionally and automatically paid their normal weekly rate, specifically in respect of that leave.
Therefore, the Court cannot accept that the company’s position of paying over and above the worker’s gross pay for annual leave not taken was in accordance with the Act.
Based on the evidence presented to the Court, at the termination of his employment there was an outstanding entitlement to 4 days annual leave for which he received compensation for some outstanding annual leave in accordance with section 23 of the Organisation of Working Time Act, 1997.
In the circumstances of this case, the Court considers that the claimant should be paid compensation in the amount of €500 in full settlement of all of his claims under the Organisation of Working Time Act, 1997.
The Court upholds the appeal and varies the Rights Commissioner's decision accordingly.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
22nd December, 2004______________________
JO'CDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Joanne O'Connor, Court Secretary.
WTC/04/42 DETERMINATION NO. DWT0458
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
PARTIES:
THE STAND HOUSE HOTEL
(EMPLOYER)-AND-
ENDA DELANEY
(EMPLOYEE)ENDA DELANEY
SUBJECT:
1.Appeal of Rights Commissioners Decision WT19073/04/LM.
BACKGROUND:
2. An application has been made by the employee that Determination No.DWT0458 does not correctly state the name of the employer. The correct name of the employer being The Stand House Hotel Limited.
DETERMINATION:
- In exercise of its powers under Section 39(2) of the Organisation of Working Time Act, 1997, the Court determines that the name of the employer in Determination No. DWT0458 shall be changed from The Stand House Hotel to The Stand House Hotel Limited.
Signed on behalf of the Labour Court
Kevin Duffy_
Chairman
25th July, 2005.
Kevin Duffy_
Chairman
25th July, 2005.