FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : P.B. CYGON LIMITED (REPRESENTED BY O’BRIEN RONAYNE SOLICITORS) - AND - JAN MIKOTAUYLE (REPRESENTED BY JAN POTOCKI) DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. Appeal of Rights Commissioner's Decision r-077402-wt-09/JW.
BACKGROUND:
2. The Employer appealed the Rights Commissioner’s Decision to the Labour Court on 19th October 2009, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. The Court heard the appeal on the 12th March, 2010.
DETERMINATION:
A complaint was made to a Rights Commissioner by the Complainant pursuant to Section 27 of the Organisation of Working Time Act 1977 (the Act). He complained that the Respondent failed to grant him his entitlements to annual leave and payment for public holidays in accordance with Section 19(1) and Section 21(1) of the Act.
A Rights Commissioner heard the complaint on 8th July 2009 and issued the following Decision:
- 'Based on the uncontested evidence presented at the hearing, I find that the complaint is well founded.
The Complainant worked as a general operative and his basic rate of pay in that role is €14:88 per hour. The Complainant is due a payment in relation to annual leave entitlements of €1,904 and a payment of €357 in relation to public holiday entitlement.
I order the employer to pay the Complainant in compensation the total sum of €2,261 for breaches of Section 19 and 21 of the Act.
This sum must be paid within 6 weeks of the date of this decision'.
It is against this Decision that the Respondent appealed to the Labour Court.
The Respondent submitted that the Complainant was employed as a craftsman and was paid the hourly rate of €18.60 in accordance with the terms of the Registered Employment Agreement for the Construction Industry. In addition the Respondent said the Complainant, at his request, was paid an allowance in his total pay throughout the year in lieu of his statutory holiday entitlements. The Complainant took leave at his own discretion, in excess of his annual entitlement, and was compensated for this through the weekly allowance. The Complainant did not work on public holidays and was paid for these throughout the year through the weekly allowance. The Respondent admitted that the nature and extent of the allowance wasdifficult to determine from the pay slips but asserted that it clearly was paid to the Complainant. The Respondent stated that he was freely advising the Court that the Complainant was on a higher grade and paid on a higher salary than that set out in the Rights Commissioner’s Recommendation. He also stated that the Complainant was entitled to four and not three public holidays as set out in the Rights Commissioner’s Recommendation. He argued that this demonstrated his bonae fides in this matter. On this basis he argued that the Complainant had an entitlement to €1,094.80 in respect of his annual leave entitlement and €520.80 in respect of his public holiday entitlements and that taking into account the weekly allowance the total underpayment to the Complainant was €189.70. He asked the Court to vary the Rights Commissioner’s Decision accordingly.
The Complainant disputed the overpayment and claimed that he had not received his entitlements to annual leave and to payment for public holidays in accordance with the provisions of the Act.
The Court’s Findings:
The Court rejects the assertion that a weekly allowance can be paid to an employee in lieu of statutory annual leave entitlement. This matter has already been before the Court in Armen Mikoian Trading As G&N Construction and Olga Motovilova (Determination No. DWT 0754) 23rd November 2007. In that case the Court stated:
- The right to be paid annual leave is provided for by Article 7 of the Directive 93/104/EC “ concerning certain aspects of the organisation of working time”. Section 19 of the Organisation of Working Time Act gives effect to Article 7 of the Directive and must be interpreted so as to achieve the result envisaged by the Directive.
Article 7 of Directive 93/104/EC on the Organisation of Working Time (the Directive) provides that the prescribed minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated. The Act was enacted to transpose the Directive and in accordance with settled law it must be interpreted and applied so to achieve the result envisaged by the Directive (C –14/83 Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1891). Article 7 reflects the fact that the Directive is a health and safety measure and the requirement to provide employees with a minimum amount of paid annual leave per year is a health and safety imperative. This was made clear by the ECJ in C- 173/99 R v Secretary of State for Trade and Industry ex parte broadcasting, entertainment and Cinematography and Theatre Union [2001] IRLR 559. See comments of Advocate General Tizzano which were quoted with approval in Royal Liver Assurance Limited v Mackin and others High Court Unreported Lavin J. 15th November 2002).
In the Court’s view what is required by Article 7 of the Directive and by the Act, is not only that workers receive the requisite leave, but that they be unconditionally and automatically paid their normal weekly rate, specifically in respect of that leave.
Therefore, the Court cannot accept that the Respondent’s position of paying an allowance in lieu of his statutory holiday entitlement and granting unpaid time off was in accordance with the Act.
Accordingly the Court dismisses this aspect of the appeal and awards the Complainant his annual leave entitlement in accordance with the terms of the Registered Employment Agreement, which the Court calculates at €1,208.52.
Public Holidays
The Respondent did not keep proper records in accordance with the provisions of S.I. No. 473/2001 Organisation of Working Time (Records) (Prescribed Form and Exemptions) Regulations, 2001. Under Section 25(4) of the Act the onus of proving that Section 20 (1) of the Act, has been complied with in relation to the employee lies with the employer. From the documentation presented for the Court’s examination it was not possible to determine that the Section had been complied with in respect of the employee. The Respondent has failed to discharge the onus that is upon him and accordingly the Court dismisses the Respondent’s appeal under this heading. The Court finds that the Complainant is entitled to be paid for four public holidays and awards the sum of €580.32.
The Court varies the Rights Commissioner’s Decision and awards the total sum of €1788.84 to the Complainant. The Respondent is directed to pay the Complainant compensation in that amount.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
25th March, 2010______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.