FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : MEDICUS MEDICAL CENTRE LIMITED (REPRESENTED BY LEMAN SOLICITORS) - AND - KRYSTYNA TERLECKA (REPRESENTED BY POLISH CONSULTANCY ENTERPRISE) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Ms Ni Mhurchu |
1. Appeal of Rights Commissioner's Decision r-080972-wt-09
BACKGROUND:
2. The Complainant was employed as a part-time nurse from February 2008 until she was dismissed in May 2009. She brought a complaint under Section 27(1) the Organisation of Working Time Act (the Act) before a Rights Commissioner, against her former employer, alleging that her right to annual leave under Section 19 of the Act and to payment for working on public holidays under Section 21 of the Act had been infringed. The Rights Commissioner found in her favour and awarded her the sum of €4,300.
The Employer appealed the Rights Commissioner’s Decision to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997 on the 8th March, 2010. The Court heard the appeal on the 2nd July, 2010.
EMPLOYEE'S ARGUMENTS:
3. 1. The Complainant did not receive her annual leave entitlements in the leave years which ended in March 2008 and in March 2009.
2. The Complainant did not receive her annual leave entitlement for the period from 1st April 2009 until 26th May 2009 which is the date of the termination of her employment.
3. The Complainant did not receive her entitlement for Public Holidays namely, New Year's Eve, St Patrick's Day, Easter Monday and the May Public holiday.
COMPANY'S ARGUMENTS:
4. 1. The Company acknowledges that the Complainant was entitled to annual leave payments and five public holiday payments when she was dismissed.
2. The award made by the Rights Commissioner is excessive as it appears to be at least twice the actual entitlement.
DETERMINATION:
The Complainant brought a complaint before a Rights Commissioner pursuant to the Organisation of Working Time Act 1997 (the Act) alleging breaches of Sections 19 and 21. The Rights Commissioner upheld the complaints and awarded the sum of €4,300.00.The Employer appealed the Decision of the Rights Commissioner.
The Employer did not attend before the Rights Commissioner for reasons which were explained to the Court.
The Court has considered the Employer's appeal of the Rights Commissioner's Recommendation. At the hearing of the appeal the Employer accepted that the Complainant had not received her annual leave and public holiday entitlements under the terms of Sections 19 and 21 of the Act. However the Employer appealed against the quantum of the award.
Mr. Hogan solicitor on behalf of the Employer submitted that the jurisdiction of the Court was confined to a six month period prior to the date of claim and consequently the Complainant was entitled to outstanding annual leave for the period 1st January 2009 to 30th June 2009 - the latter date being the date of claim.
Section 19(1) of the Act entitles an Employee to 8% of the hours worked in a leave year and Section 20(1) provides that, subject to certain conditions, it is for the Employer to determine the time at which annual leave is granted to an Employee provided the leave is granted within the year to which it relates or, with the consent of the Employee, within the 6 months thereafter (not relevant in this case). A leave year is defined by Section 2(1) as a year beginning on the 1st of April.
Lavan J inRoyal Liver Assurancev Mackin & Others, High Court Unreported 15th November 2002,held that an infringement of Section 19 of the Act could not be deemed to have occurred until that time scale had expired without the paid leave having been granted, and the Employee then six months to bring a claim in respect of that leave year. In addition Lavan J found that each breach of the Act in respect of an employees entitlement to receive pay for working on a public holiday was a discrete offence and a complaint in respect of that offence must be brought within six months of its occurrence.
In the present case as the claim was made on the 30th of June, 2009, the Court is of the view that the appropriate period to take into consideration is the leave year from the 1st of April, 2008, to the 31st of March, 2009, and thence forward.
On that basis the Court finds that the Complainant had an outstanding entitlement to 96 hours annual leave which equates to €2,496.00 and an outstanding public holiday entitlement form the 1st of January 2009 to the date of termination of her employment. which equates to €650.00.
That this does not however dispose of the matter. In addition to making an award to the Complainant of all monies lost by her as a result of the respondents breaches of the Act the Court has power, in accordance with Section 27(3)(c) of the Act, having regard to all the circumstances of this case, to award the Complainant compensation. The Court having considered the circumstances of this case deems it appropriate to make such an award. The Court awards further compensation to the Employee of €1,154.00 making a total of €4,300.00.
Determination
The Court awards the Complainant a total of €4,300.00 being €3,146.00 in respect of monies lost by her as aresult of the employers breach of the Act and the sum of €1,154.00 as compensation for the said breaches.
The Rights Commissioner's Decision is varied accordingly and the Employer's appeal is allowed in part.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
21st July, 2010______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.