FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : BANJOS AMUSEMENT ARCADE - AND - A WORKER DIVISION : Chairman: Mr Duffy Employer Member: Mr Grier Worker Member: Mr Nash |
1. Appeal of Rights Commissioners Decision WT19719/04/MMG.
BACKGROUND:
2. 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 3rd December, 2004 as follows:
- "In considering the evidence with the claimant he was emphatic that when he took his holidays in Mexico he only received 1 weeks pay as that would be his accrual to date and again 1 weeks pay in March when he went to Cork.
Furthermore of the 7 public holidays during this time, he worked 3 and only received flat rate and nothing for the remaining 4.
I award the claimant 1 weeks net pay for holiday entitlement and 1 week and 2 days net pay for the public holiday payments, a total of 2 weeks and 2 days net pay".
The Company appealed the Rights Commissioner's recommendation to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997 on the 29th December, 2004. A Labour Court hearing took place on the 5th May, 2005. The claimant was unable to attend the Court hearing due to work commitments.
- "In considering the evidence with the claimant he was emphatic that when he took his holidays in Mexico he only received 1 weeks pay as that would be his accrual to date and again 1 weeks pay in March when he went to Cork.
DETERMINATION:
The claimant did not attend the hearing and had indicated to the Court that his inability to do so was because of work commitments.
Whilst the employer did supply certain records relating to the claimants employment, they do not specifically indicate when he received holidays or the amounts which he was paid in respect of holidays.
Section 25 of the Act requires an employer to maintain records which show that the provisions of the Act are complied with in relation to the employee. This section further provides that where such records are not maintained the onus of proving compliance with the Act rests with the employer.
In this case the onus is on the employer, and the Court is satisfied that that onus has not been discharged. Accordingly this appeal cannot be allowed.
The decision of the Rights Commissioner is affirmed. The employer is directed to pay the claimant compensation equal to 2 weeks and two days pay in accordance with the decision of the Rights Commissioner.
Signed on behalf of the Labour Court
Kevin Duffy
18th May, 2005______________________
JBChairman
NOTE
Enquiries concerning this Determination should be addressed to Jackie Byrne, Court Secretary.