FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : FASERCOURT LTD T/A CASEY ENTERPRISES - AND - SHAY O'BRIEN (REPRESENTED BY ENSOR O'CONNOR SOLICITORS) DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner's Decision R-042938-Wt-06/Tb
BACKGROUND:
2. This case concerns an appeal by the employer of Rights Commissioners Decision R-042938-Wt-06/Tb. The employer is claiming that he was unaware of the Rights Commisioner's hearing due to an error on his part. The worker has also complained that the Decision of the Rights Commissioner has not been implemented.
The dispute concerns the non-payment of holiday pay and public holiday pay. The worker contends that he was not paid the correct entitlements under the Organisation of Working Time Act, 1997. The Employer contends that a composite rate of pay to include holiday and public holiday pay was paid to the worker every week while in the employment of the worker, hence, all obligations were met in respect of the payments.
The dispute was referred to a Rights Commissioner for investigation. His decision issued on 17th November, 2006 and. on the uncontested evidence of the employer, found in favour of the worker. The worker was awarded €3750 by way of compensation.
On the 6th December 2006, the employer appealed the Rights Commissioners decision in accordance with Section 28(1) of the Organsation of Working Time Act, 1997. The worker submitted his complaint on 10th January, 2007. A Labour Court hearing took place on 19th September, 2007.
UNION'S ARGUMENTS:
3 1 The Decision of the Rights Commissioner has not been implemented. The correct holiday pay/ public holiday entitlements were not provided to the worker while in the employment of the employer.
COMPANY'S ARGUMENTS:
4 1 The worker was paid a composite rate of pay while in the employment of the employer which covered all entitlements in respect of holiday pay and public holiday pay.
DETERMINATION:
This is an appear by Fasercourt Ltd T/A Casey Enterprises (the Respondent) against the decision of a Rights Commissioner awarding Mr Shay O’Brien (the Claimant) €3,750 by way of compensation for unpaid holiday pay due to him in respect to annual leave and public holidays. The claim was taken pursuant to sections 19, 20 and 21 of the Organisation of Working Time Act 1997. That statute was enacted to give effect to Directive 93/104/EC.
The Respondent’s defence to the claim is that an element was included in the Claimant’s basic pay to include pay for holidays.
This Court has previously decided that the obligation to provide holidays with pay cannot be discharge by including an element in basis pay and that any agreement or contract which purports to authorise such an arrangement is to that extent void. See, for example, the decision of this Court in Determination DWT 0043,O’Donnell v Wolf Security[2001] ELR 136, Determination DWT017Martin Tracey v Cementation (Ireland) Ltd
The fact that the type of arrangement relied upon by the Respondent does not meet the requirements of the Directive and the Act has been put beyond doubt by the recent decision of the ECJ in joined cases C-131/04, C. D. Robinson-Steele v R. D. Retail Services Ltd, C-257/04 Michael Jason Clarke v Frank Staddon LtdandJ. C. Caulfield and Others v Hanson Clay Products LtdECR 1 0253. In that case the Court of Justice made it clear that the relevant obligation imposed on an employer under the Directive can only be met by paying an employee in respect holidays at the time the holidays are taken. That decision is absolutely binding on this Court. Consequently the defence to the within claim relied upon by the Respondent is unsustainable in law.
Accordingly the Court must hold that the Claimant was not provided with paid annual leave and public holidays and that he is entitled to compensation in the amount of €3,750, as fixed by the Rights Commissioner.
The decision of the Rights Commissioner is therefore affirmed and the appeal is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
2nd October 2007______________________
AHChairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.