FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : MERLONI LTD (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - ANNA-MARIE FLANAGAN DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioner's Decision R-036293-Wt-05-DI.
BACKGROUND:
2. The Company is the operational support operation in Ireland for the Indesit range of consumer electrical appliances and operates a customer support centre in Santry, Dublin. The worker concerned commenced employment as a Customer Advisor at the centre in September, 2004. Her employment was subject to ‘satisfactory completion of a three month trial period.’ The worker was given workplace- based training and coaching in the same way as other employees/recruits.
When coaching was being provided by the Supervisor the worker was regularly cautioned that her performance during her trial period was not up to standard and was specifically warned that this was a critical issue in the context of her employment contract.
On 1st December, 2004, the Company released the worker from her contract with due notice and holiday pay entitlements.
The issue was referred to a Rights Commissioner for investigation and decision.The Rights Commissioner's decision found that the worker had availed of rest breaks throughout her employment and that she had received all her entitlements under the Organisation of Working Time Act, 1997.
The worker appealed the Decision to the Labour Court on the 2nd December, 2005, in accordance with Section 28(1) of the Organisation of Working Time Act,1997.
The Court heard the appeal on the 7th December, 2005.
DETERMINATION:
The Claimant complained to a Rights Commissioner that her former employer, Merloni Ltd, (the Respondent) failed to provide her with periodic rest breaks contrary to Section 12 of the Organisation of Working Time Act, 1997. She also complained that her entitlements in respect of public holidays and annual leave were infringed by the Respndent. The Rights Commissioner found that there was no evidence to support these complaints. The Claimant appealed to the Court.
Having considered the submissions of the parties the Court determines as follows:
Rest Periods.
The representative of the Respondent told the Court that all employees are free to take breaks without management direction or intervention and that in common with all other employees the Claimant took the requisite breaks. The Claimant did not present any evidence to rebut that assertion. Accordingly, the Court is satisfied that this complaint is not well- founded.
Holiday Entitlements.
The Respondent provided the Court with details of the holiday (cessor) pay which the claimant received on termination of her employment. This indicated that the Claimant received one day of annual leave during the currency of her employment. On termination of her employment she was paid in respect of 6.6 days in accordance with her contractual entitlement. This exceeded the Claimant's statutory entitlement of 4.3 days.
In the course of the hearing the Claimant advanced the argument that she should have been paid in respect of 3 public holidays at Christmas 2004. She based this argument on the fact that she had worked 40 hours in the five weeks preceding these holidays.
Section 23(2) of the Act deals with an employee's entitlement in respect of public holidays on termination of employment. It provides as follows:
(a) an employee ceases to be employed during the week ending on the day before a public holiday, and
(b) the employee has worked for his or her employer during the 4 weeks preceding that week, the employee shall, as compensation for the loss of his or her entitlements under Section 21 in respect of the said public holiday, be paid by his or her employer an amount equal to an additional days' pay - calculated at the appropriate daily rate.
The Claimant's employment terminated on the 8th December 2004. Consequently she did not cease to be employed during the week ending on any of the Public Holidays at issue. In these circumstances the Claimant has no cause of complaint under this Section of the Act. Accordingly, the Court finds that her complaint is not well founded.
The Decision of the Rights Commissioner is affirmed and the appeal is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
20th December, 2005______________________
MG.Chairman
NOTE
Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.