FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : VINCENT POWER TRADING AS STABLE DIET CAFE - AND - LUKASZ KOWALIK (REPRESENTED BY POLISH CONSULTANCY ENTERPRISE) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal against Rights Commissioner's Decision r-083874-wt-09/TB.
BACKGROUND:
2. The Complainant worked for the Employer as a waiter from 1st November, 2007 until 11th July 2009. It is submitted in his claim that he was not paid for two public holidays during March and May 2009. The Rights Commission found against the Complainant in his Decision dated 16th April 2010.
The Employee 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 19th April, 2010. The Court heard the appeal on the 22nd March, 2009, the earliest date suitable to the parties.
WORKER'S ARGUMENTS:
3. 1. The entitlements due on account of public holidays cannot now be offset against a balance of annual leave days that were taken and found to be in excess of the Complainant's annual leave entitlements.
COMPANY'S ARGUMENTS:
4. 1. It is conceded that the Worker did not receive his entitlements regarding the two public holidays, however, the Worker had received annual leave in excess of his entitlements thus leaving an outstanding balance of six-and-a-half days owing to the Employer.
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 did not uphold the Complainant’s complaints. The Complainant accepted the Decision of the Rights Commissioner in relation to his claim under Section 19; however, he appealed the Decision in relation to his Section 21 complaint.
Mr. Blazey Nowak, on behalf of the Complainant, submitted that the Respondent did not award the Complainant an entitlement to two public holidays, which occurred in March and May 2009. The Respondent told the Court that it was due to an oversight that the Complainant did not receive his public holiday entitlements, however, he told the Court that the Complainant had received annual leave days over and above his entitlements and sought to offset these days against the public holiday entitlements due.
Section 21 of the Act provides as follows: -
- (1)Subject to the provisions of this Section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely-
(a) a paid day off on that day,
(b) a paid day off within a month of that day,
(c) an additional day of annual leave,
(d) an additional day's pay:
Therefore, the Court recommends that the Respondent should pay the Complainant an amount of €160.00 in respect of his claim before the Court. The Court upholds the appeal and overturns the Rights Commissioner's Decision accordingly.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
12th April, 2011______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.