FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : SLIGO PARK HOTEL (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - MARJAN BIZAK (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. Appeal against a Rights Commissioner's Decision R-057959-Wt-07/SR
BACKGROUND:
2. The Worker was employed by the Hotel (the Respondent) from 15th December, 2006, to the 27th September, 2007. His claim is that he was not paid the correct rates of pay for working on Sundays, that the Hotel Joint Labour Committee (JLC) rates were not applied and that deductions were made for meal allowances during Annual Leave and Public Holidays. The Respondent's case is that when it discovered that it was not paying the correct rates it rectified the matter and also paid the appropriate retrospection. The following is the Court's determination:
DETERMINATION:
This is an appeal by the Worker of a Rights Commissioner’s Decision under the Organisation of Working Time Act, 1997(the Act). The Worker presented a complaint to a Rights Commissioner on 19th October 2007 pursuant to Section 27 of the Act. He complained that the Respondent failed to pay him an appropriate Sunday Premium rate pursuant to Section 14 of the Act and he claimed redress in respect of deductions made for board and lodgings while on Annual Leave and Public Holidays contrary to Regulation 3 (3) and 5 (1) (b) or 5 (2) (b) of Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997 S.I. No. 475 of 1997.
The Claimant’s employment with the Respondent commenced on 15th December, 2006, and terminated on 27th September, 2007.
The Respondent informed the Court that when it became aware of possible alleged breaches of the Act in order to rectify the situation, it paid retrospection to the Claimant and the sum of €774.37 was paid by the end of September, 2007.
Sunday Premium
The Respondent admitted that following an audit it carried out regarding its compliance with the terms of the Act, it discovered that its practice of paying 10% every week in lieu of 20% for each Sunday worked did not comply with the terms of Section 14 of the Act. Under the terms of the Hotels Joint Labour Committee it stipulates that where a worker works every second Sunday as part of a 78-hour working fortnight, he/she should be paid a Sunday premium of 20%. When the Respondent became aware of its error it paid compensation to the Claimant and paid 20% for each Sunday worked retrospectively to the commencement of his employment. The Court notes that from 4th August 2007 the correct premium was paid. Details of the amounts paid and rosters worked were submitted to the Court.
On examination of the records produced the Court is satisfied that the appropriate compensation has been made in respect of Sunday Premia for each Sunday worked covered by the relevant period for complaints appertaining to contraventions of the Act. Therefore, the Court does not find in favour of the Appellant’s claim.
Deduction of board and lodgings during Annual Leave and Public Holidays
The complaint relates to the alleged infringement of Regulations 3 (3) and 5 (1) (b) or 5 (2) (b) of the Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997 S.I. No. 475 of 1997, on the basis that the Respondent deducted board and lodgings from Annual Leave pay and pay for Public Holidays, for the period from 15th December, 2006, until his termination date on 27th September, 2007.
In so far as the complaint relates to the Respondent's failure to pay the Claimant the correct rate on dates prior to the relevant period, it is statute-barred and, to that extent, it is not cognisable by the Court. Therefore, those parts of the claim which relate to arrears of pay in respect of the leave years prior to 2007 are out of time and are statute-barred. The Court may hear that part of the claim which relates to the leave year 2007. Having examined the matter, the Court is satisfied that the compensation paid covers breaches of the Regulations which occurred in this period. Therefore, the Court does not find in favour of the Appellant’s appeal.
Determination
Having heard the submissions of the parties, the Court finds that there was no breach by the Respondent under Section 14 of the Organisation of Working Time Act, 1997 and no breach of Regulations 3 (3) and 5 (1) (b) or 5 (2) (b) of the Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997 S.I. No. 475 of 1997.
The Court, accordingly, upholds the Recommendation of the Rights Commissioner and dismisses the appeal.
Signed on behalf of the Labour Court
Caroline Jenkinson
15th June, 2009______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.