FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : JADE INDUSTRIAL CONTRACTING LIMITED - AND - EVALDAS SUDZIUS (REPRESENTED BY RICHARD GROGAN & ASSOCIATES, SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. Double appeal against a Rights Commissioner’s Decision r-072159-wt-08/DI.
BACKGROUND:
2. The Worker was employed as a General Operative and Trainee Scaffolder from 26th November 2007 to 16th September 2008.He claimed a breach of Sections 17 and 21 of the Act. He Employer did not attend the hearing before the Rights Commissioner. The Rights Commissioner found in favour of the Employee and awarded €500.00 compensation.
The Employee and Employer both 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 10th September and 16th October, 2009 respectively. The Court heard the double appeal on the 26th January, 2010, the earliest date suitable to the parties.
EMPLOYER'S ARGUMENT:
3. 1. Notice of the Rights Commissioner's hearing was never received at the Company's office in Navan.
2. The Employer refutes the Worker's claim in relation to outstanding holidays and contends that the Worker was never required to work additional hours at short notice. It was common practice for him to refuse and he never suffered any repercussions as a result.
WORKER'S ARGUMENT:
4. 1. The Worker contends that he was not paid his entitlements in relation to holidays when his work ended and was not given 24 hours notice prior to working additional hours.
DETERMINATION:
Mr. Evaldas Sudzius (the Complainant) instituted proceedings under Section 27(2) of the Organisation of Working Time Act 1997 (the Act) before a Rights Commissioner. He claimed that the Employer had breached the Act by not providing him with at least 24 hours notice prior to working “additional hours” in breach of Section 17 of the Act. Furthermore, he sought compensation due under Section 23 of the Act from the Respondent in respect of outstanding annual leave on the termination of his employment.
The Employer (the Respondent) did not attend before the Rights Commissioner for reasons which were explained to the Court.
The Rights Commissioner, on hearing the complaints, held with the Complainant under Section 17 and awarded him compensation of €500. He disallowed his complaint under Section 23.
Both the Complainant and the Respondent appealed the Decision of the Rights Commissioner to this Court.
The Complainant had been employed with the Respondent from 26th November 2007 until 16th September 2008.
The Respondent submitted that any additional hours worked by the Complainant were offered to the Complainant and on a number of occasions he accepted such additional work and at other times he refused it when it did not suit him to work those additional hours. Mr. Richard Grogan, Solicitor on behalf of the Complainant, confirmed to the Court that the Complainant had voluntarily worked such additional hours and accordingly did not dispute the Company’s appeal on this finding.
In relation to the Complainant’s complaint that he did not receive payment for outstanding holiday on the cessation of his employment, the Respondent produced records for the Court showing that the Complainant had received his full annual leave entitlement for the full duration of his employment in the form of cesser pay on the termination of his employment in September 2008. Mr. Grogan accepted this, however, he did not accept that the Complainant had given his consent to carry over three days' leave from the 2007/2008 leave year into the 2008/2009 leave year.
Section 23 of the Act provides for payment of compensation on cesser of employment for any outstanding holidays and accordingly the Court upholds the Respondents appeal of the claim for outstanding annual leave.
Section 20(1)(c) of the Act provides that annual leave must be granted within the leave year to which it relates or, with the consent of the Employee, within six months thereafter. It is accepted by both sides that no consent had either been sought or given in this case. However, no claim was submitted to the Rights Commissioner pursuant to Section 20 of the Act.
Therefore, the Court overturns the Rights Commissioner’s Decision under Section 17 of the Act and upholds the Respondent’s appeal.
The Court concurs with the Rights Commissioner’s findings and Decision in respect of the Complainant’s claim under Section 23 of the Act and dismisses the Complainant’s appeal.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
15th March, 2010______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.