FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : MCNALLY HANDY & PARTNERS LTD - AND - PATRICIA BYRNE (REPRESENTED BY COUGHLAN GRIFFITH & CO) DIVISION : Chairman: Mr McGee Employer Member: Mr Carberry Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioner's Decision WT19162/04/DI.
BACKGROUND:
2. The case before the Court concerns a dispute whereby a worker was awarded compensation in respect of unused annual leave between 1st June, 2003, and the termination of her employment on 26th September, 2003.
The worker in question had taken days off work during 2003 and claimed that these days had been taken off in lieu of weekends worked and not as part of her statutory holiday entitlements.
The company rejects the claim on the basis that there was no agreement in place whereby the worker could take days off in lieu of weekend work.
The matter was referred to a Rights Commissioner for investigation and his decision issued on the 18th August, 2004 as follows:-
"While I accept that Ms. Byrne's contract of employment is specific in stating that remuneration for working overtime must be agreed by the Company, I also believe that Ms. Byrne has operated a time off in lieu arrangement, in compensation for working additional hours, over a number of years. This arrangement may have been informal, however, given that she was taking up to 4/5 additional weeks' annual leave each year, I believe the arrangement must have been known to her superiors. This I believe was effectively an implicit acceptance by the Company of Ms. Byrne's time-off in lieu arrangement.
I therefore find in favour of Ms. Byrne's claim and award her compensation of
€2,495.26 to be paid in accordance with revenue requirements".
The Company appealed the Recommendation on the 23rd September, 2004, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 26th January, 2005.
COMPANY'S ARGUMENTS:
3. 1. The contract of employment specifically stated that "remuneration for any time worked by you will be agreed by the Company". There was no agreement whereby the worker would be paid for working weekends or whereby time off in lieu could be taken.
WORKER'S ARGUMENTS:
4. 1. The custom and practice had been, over a number of years, that time in lieu would be taken for working weekends. This was never questioned by the employer, nor was the worker requested to submit records.
DETERMINATION:
Having carefully considered the oral and written submissions and supplementary material supplied by the parties, the Court upholds the Rights Commissioner's Recommendation and dismisses the appeal.
The Court so determines
Signed on behalf of the Labour Court
Raymond McGee
22nd February, 2005______________________
AH/MB.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.