FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : MARC O'MAHONY TRADING AS THE GOOD FOOD SHOP FORMERLY TRADING AS PREMIER ORGANICS - AND - DARIA KALKOWSKI (NEE GAWALKO) (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. Appeal of Rights Commissioner's Decision r-048041-wt-06/POB
BACKGROUND:
2. This case concerns an appeal by the Employer of Rights Commissioner's Decision r-048041-wt-06/POB. The issue in dispute concerns the Union's claim that the worker was not paid a Sunday Premium, Public Holiday entitlement nor Annual Leave entitlements under the Organisation of Working Time Act, 1997.
The employer's position is that the worker did take Annual Leave for which she was paid and was also paid all other entitlements while in his employment.
The dispute was referred to a Rights Commissioner for investigation. His Decision issued on the 24th April, 2009 and found that the employer had breached the Act. He awarded the worker €1,000 in respect of the breaches by the employer.
UNION'S ARGUMENTS:
3 1 The worker was not paid the correct Annual Leave entitlements under the Act. The employer gave the worker the equivalent of two weeks' wages (€500) while going on holidays but re-couped the money at a rate of €125 per week for four weeks following her return to work.
2 The worker never received Sunday Premium or Public Holiday entitlements under the Act.
COMPANY'S ARGUMENTS:
4 1 The worker was paid all entitlements owed to her for the duration of the employment. The employer made every effort to treat the worker well and provided lodgings and transport for her which he was not obliged to do.
DETERMINATION:
This is an appeal by the Respondent of a Rights Commissioner’s Decision under the Organisation of Working Time Act, 1997(the Act).
The Claimant contends that she did not receive a Sunday Premium for working on Sundays in accordance with Section 14 of the Act.
The Claimant contends that she did not receive her entitlement to annual leave in accordance with Section 19 of the Act and that she did not receive her entitlement to eight public holidays in accordance with Section 21 of the Act.
The Rights Commissioner found in favour of the worker under the Organisation of Working Time Act 1997 and recommended accordingly.
Sunday Premium
Section 14(1) of the Organisation of Working Time Act, 1997 states that:
- "An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken into account of in the determination of his or her pay) shall be compensated by his or her employer for being required to work by the following means,
(a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or
(b) by otherwise increasing the employee's rate of pay by such an amount as is reasonable having regard to all the circumstances, or
(c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances. or
Section 25(4) of the Act provides, in effect, that where an Employer fails to keep records in respect of his or her compliance with a particular provision of the Act in relation to an employee, in proceedings before the Court the onus of proving compliance with that provision lies with the employer. In this case the Court is satisfied that the Employer has failed to maintain adequate records to show that the Act was complied with in respect of the Claimant and thus carries the burden of rebutting the evidence given by the Claimant.
Throughout her employment the Claimant was paid at a rate of €250.00 per week plus Lodgings. During the relevant period the national minimum wage was €7.65 per hour. In separate proceedings under the National Minimum Wage Act, 2000 the Court has found that the Claimant was not paid the national minimum rate of pay.
In the absence of any evidence to substantiate the assertion that the Claimant’s rate of pay is inclusive of a Sunday premium, the Court finds that the Respondent contravened Section 14 of the Act.
Annual Leave and Public Holidays
It is the Respondent's case that the Claimant was paid three weeks' annual leave when she availed of such leave in May 2006, just prior to the termination of her employment. This was denied by the Claimant.
As the normal working week ran from Sunday to Thursday, when a Public Holiday occurred, it was necessary to work from Monday to Thursday and accordingly the Respondent accepted that the Appellant worked many Public Holidays, however, on such occasions he maintained that she received her entitlements under the Act as she received the Sunday off in lieu.
The Respondent failed to produce evidence to substantiate his position and in the absence of such evidence to show compliance with the provisions of the Act, the Court must therefore find on the balance of probabilities that he contravened Sections 19 and 21 of the Act.
Having considered the submissions of both parties the Court finds no reason not to concur with the Rights Commissioner 's findings and conclusions in r-048041-wt-06POB. Therefore, the Court upholds the Rights Commissioner's decision and rejects the Respondent's appeal.
The Court determines that the employer must pay the sum of €1,000.00 in respect of the claim under the Organisation of Working Time Act 1997.
An order will be made in the Claimant's favour in that amount.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
23rd February 2010______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.