DWT0850

The facts.

The material facts of the case, as admitted by the parties or as found by the Court, are as follows: -

• The Claimant was employed by the Respondent from 4th January, 2006, until she resigned on 21st August 2007. Prior to her resignation the Claimant had been on maternity leave.
  
  On the termination of her employment the Claimant had accrued an outstanding entitlement of 10 days' annual leave and 5 days in respect of public holidays. The Claimant did not receive payment in respect of these holidays at that time.
  
  The Claimant subsequently sought payment from the Respondent for the outstanding holidays. The Respondent took the view that the Claimant had resigned without fulfilling her contractual obligations as to notice. On that account the Respondent mistakenly took the view that she was not entitled to the payments claimed.
  
  The Claimant referred her claim to a Rights Commissioner pursuant to Section 27 of the Act. While the case was at hearing before the Rights Commissioner discussions took place which resulted in an agreement to settle the case. In this agreement the Claimant agreed to accept €2,019.23, which approximated to 14 days' pay, in settlement of her claim. The Rights Commissioner reduced the terms of settlement to writing and it was signed by the parties. The agreement provided that the monies due to the Claimant were to be paid within four weeks of the date thereof. The Rights Commissioner was careful to provide a specific timeframe within which the payments agreed were to be discharged.
  
  The Rights Commissioner did not provide either party with a copy of the agreement. The representative of the Respondent told the Court that the Rights Commissioner told him that she would issue a copy of the agreement and related instructions arising from the hearing by post. The Claimant said that the Rights Commissioner made no such commitment. In any event the monies due on foot of the agreement were not paid within the time provided. The representative of the Respondent told the Court that payment was not made because he was awaiting a copy of the agreement and related instructions from the Rights Commissioner. After the time for payment had passed the Claimant contacted the Rights Commissioner service in the matter. As a result the Rights Commissioner formulated a decision in which she awarded the Claimant compensation for the full economic value of the outstanding holidays which she had claimed. The Rights Commissioner also awarded the Claimant compensation in the amount of €4,000 in respect of the contraventions of the Act which she found to have occurred.
  
  After this decision was communicated to the Respondent it issued the Claimant with a cheque for €2016 which the Respondent understood to be the amount originally provided for in the settlement agreement. The Claimant accepted this amount but claimed the balance of the amount due on foot of the Rights Commissioner’s award.

Position of the parties

The representative of the Respondent told the Court that he was waiting for a copy of the agreement from the Rights Commissioner before paying the monies due to the Claimant. He said that the Rights Commissioner had advised him that there was no need to take a note of the amount due to the Claimant as this would be furnished by post. He said that as soon as the Rights Commissioner’s decision was received by the Respondent the money originally agreed was paid.

The Claimant said that she wished to resolve the matter amicably and had compromised her claim in discussions with the Rights Commissioner. She said that she concluded an agreement with which she was happy but that the Respondent had failed to honour the agreement. The Claimant told the Court that after the four week period allowed for payment had expired she contacted the Rights Commissioner who then agreed to issue a decision in the case. The Claimant now felt that she was entitled to the amount provided for in the decision of the Rights Commissioner.

Conclusions of the Court

It is accepted that the Claimant agreed to accept payment in the sum of €2,019.23 in settlement of her claim. While the Court has not had sight of the written agreement executed by the parties, it is satisfied, on the evidence, that it was agreed in the course of negotiations that the amount would be paid within four weeks and that this was an important term of the agreement. It seems clear that this was also the understanding of the Rights Commissioner as she proceeded to issue a decision in the case as soon as she was informed that the agreement had not been implemented within the time specified.

In these circumstances the Court is satisfied that the Claimant was entitled to pursue her claim and seek a decision from the Rights Commissioner. The Court is further satisfied that the matter is now properly before this Court for a de novo determination.

There is no dispute as to the Claimant’s entitlements under the Act. She is due payment in respect of 10 days' annual leave and five public holidays. Her daily rate of pay was €144. Accordingly the economic value of the outstanding holidays and Public Holidays is €2,160.

InCementation Skanska (Formerly Kvaerner Cementation) and Tom CarrollDetermination 0338, this Court stated as follows in relation to the computation of compensation for failure to provide annual leave in accordance with the Act:

• 
  “The obligation to provide annual leave is imposed for health and safety reasons and the right to leave has been characterised as a fundamental social right in European Law (see comments of Advocate General Tizzano in R v Secretary of State for Trade and Industry, ex parte Broadcasting, Entertainment Cinematography and Theatre Union [2001] IRLR 559 which were quoted with approval by Lavin J in the Royal Liver case.[Royal Liver Assurance Limited v Mackin & Others High Court Unreported Lavin J 15th November 2002]In Von Colson & Kamann v Land Nordrhein – Westfalen [1984] ECR 1891 the ECJ has made it clear that where such a right is infringed the judicial redress provided should not only compensate for economic loss sustained but must provide a real deterrent against future infractions.”