FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : GLAFY LIMITED (REPRESENTED BY WARREN PARKES, SOLICITOR) - AND - ARTUR PYDO (REPRESENTED BY POLISH CONSULTANCY ENTERPRISE) DIVISION : Chairman: Mr Hayes Employer Member: Ms Doyle Worker Member: Ms Ni Mhurchu |
1. Appeal against a Rights Commissioner’s Decision R-090545-WT-10/EH
BACKGROUND:
2. The Company is part of the MCR Group. The worker was employed as a driver from 2nd January, 2007, to 14th December, 2009, according to the Company; the worker claims that his employment was terminated on 19th February, 2010. The last day he actually worked was 18th January, 2010. His claim relates mainly to two issues - annual leave and Public Holidays. The parties agreed that the worker was owed €1,345 for annual leave. The Company claims that the money was always available for the worker to collect but that he declined to do so. On 7th December, 2009, the worker was told that there was no more driving duties for him at present but the Company offered him work as a general operative with MCR Personnel Limited, another part of the MCR Group. The worker declined the offer. He is claiming €476.40 for three Public Holidays between 7th December, 2009, and 19th February, 2010.
The dispute was referred to a Rights Commissioner and his findings and decision were as follows:
"I note that in the employer's letter dated 19th January 2010 to Artur Pydo they offered alternative employment "at approximately the same rate of pay" but in construction, they also stated that they had met with him in December and offered work but it was declined.
I find that he was not placed on lay- off as the Company ceased to operate and he was offered alternative employment but he declined it, therefore, he was not entitled to Public Holidays for December 25th, 26th January 1st.
I find that he is owed holiday pay and note that the employer has accepted that at least €1,345 is owed.
Decision.
As per Section 27 (3) (a) I have decided that the claim was well founded in part only.
As per Section 27 (3)(c) I require the employer to pay compensation of €1,400 within six weeks of the date below".
The worker appealed the decision to the Labour Court on the 29th July, 2010, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 18th November, 2010.
UNION'S ARGUMENTS:
3. 1. The worker was a driver and this is why he was employed. There was no point in the Company offering him work in construction in MCR Personnel Limited. It would also have involved him having to travel from Tullow to Dublin which was considerably further than when he worked with the Company.
2. The worker handed in his notice on 18th January, 2010, as there was no more driving duties available to him.
COMPANY'S ARGUMENTS:
4. 1. There was no longer any work available for the worker in the Company which is why he was offered alternative duties, at approximately the same rate of pay, in MCR Personnel Limited. The Company tried at all times to avoid any period of unemployment for the worker. The worker refused the offer.
2. Because the worker refused alternative employment in MCR Personnel Limited he was last entitled to Public Holiday payments on 26th October, 2009. He was actually paid for 7 Public Holidays in 2009, not the 6 to which he was entitled and was, in effect, overpaid by €96.
DETERMINATION:
Background:
The Complainant (Mr Artur Pydo) commenced employment with the Respondent (Glafy Ltd) on 2nd January 2007. His employment was terminated on 19th January, 2010. He submitted a complaint to the Rights Commissioner pursuant to Sections 19 and 21 of the Organisation of Working Time Act 1997 (the Act). The Rights Commissioner found as follows: -
- As per Sec 27(3) (a) I have decided that the claim was well founded in part only.
- As per Sec 27 (3) ( c) I require the employer to pay compensation of €1,400 ….”
The Complainant appealed the award to the Labour Court.
Position of the Parties:
Position of the Claimant
The Respondent admitted, at the hearing of the matter before the Rights Commissioner, that he owed the Claimant the sum of €1345 in respect of unpaid annual leave. The Rights Commissioner accordingly awarded the Complainant the sum of €1,400 euro in settlement of this matter.
The Claimant was laid off pursuant to Section 11 of the Redundancy Payments Act 1967 with effect from 11th December 2009. A worker, pursuant to Section 21 (5) of the Act is entitled to be paid for Public Holiday’s that fall during the first three months of a lay off. Three Public Holidays fell during the relevant period and accordingly the Claimant is entitled to full payment for these days.
Position of the Respondent
The Respondent submitted that the Complainant was not laid off as claimed. He was employed as a truck driver and due to a fall off in business the company had no work for him. He refused offers of work in the construction industry as a general labourer. Such offers were made on several occasions and were finally confirmed in writing to him on 19th January 2010. As there was no other work available for him his employment terminated at that time. The provisions of Section 11 of the Redundancy Payments Act 1967 were never complied with and accordingly no lay off within the statutory meaning of that term took place. Accordingly the Complainant was not entitled to payment for the three public holidays that are the subject of the complaint.
The Respondent further submitted that the Complainant had been overpaid in respect of public holidays for the 2009 leave year. The Complainant was entitled to payment under the Act for six public holidays whereas in fact he was paid for seven. The Respondent submitted it was entitled to deduct the amount of the overpayment from any amounts due to the Complainant
The Company operates a January – December leave year. At the end of the year the Claimant had not taken his full leave entitlement. Because there were discussions going on with the Complainant regarding offers of alternative employment at the end of 2009 the Respondent held back all outstanding holiday pay until the discussions concluded. This continued after the letter of 19th January was issued and the Complainant had rejected the offer of alternative employment. Shortly thereafter the Complainant initiated a Complaint to the Rights Commissioner pursuant to the Act. Accordingly the Respondent decided to make no payments until the Rights Commissioner disposed of the matter. As the Complainant had appealed the Rights Commissioner’s decision the Respondent decided to hold all monies until the Labour Court disposed of the matter. The Respondent said the monies were and always have been held on account for the Complainant.
Findings of the Court:
Public Holidays:
Section 21 of the Act governs entitlements to Public Holidays. Section 21 says: -
- 21.—(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—
b) a paid day off within a month of that day,
c) an additional day of annual leave,
d) an additional day's pay
On the respondents evidence, while they were unable to provide work as a lorry driver for the complainant after the 11th of December, 2009, they engaged in a series of discussions with him about alternative employment as a construction operative. These discussions continued until the latter part of January. They failed to produce a satisfactory outcome. The Respondent told the Court that it then had no choice but to dismiss the Complainant.
On this evidence the Court is satisfied that in the intervening period the Complainant was an employee of the Respondent who had not been assigned any work. As an employee he comes within the scope of Section 21 of the Act. Accordingly he was entitled to a paid day off in respect of the Public Holidays or an additional day’s pay in respect of each of them.
The Court accepts the Respondent’s evidence that he had paid the Complainant for seven public holidays in the relevant year whereas he had an entitlement to just six. Accordingly the Court will take this overpayment into account in any award to the Complainant.
The Court accordingly upholds the Complainant’s appeal in this regard.
Annual Leave:
It is common case that the Complainant was not paid for outstanding annual leave. The Court does not accept that there was any credible justification presented by the Respondent for withholding payment for that entitlement from the Complainant.
Section 23 of the Act provides
- 23.—(1) Where
- 23.—(1) Where
(b) the whole or any portion of the annual leave in respect of the current leave year or, in case the cesser of employment occurs during the first half of that year, in respect of that year, the previous leave year or both those years, remains to be granted to the employee the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave.
TheComplainant was therefore entitled to payment of an amount equal to the outstanding annual leave due to him on the cesser of his employment. This occurred in late January 2010. As of the date of the case coming before the Labour Court no such payment had been made to the Respondent. As stated the Court has been furnished with no satisfactory explanation as to why these payments should have been withheld from the complainant
Remedy:
The Court finds that the appropriate remedy in this case is compensation and in determining the level of the said compensation the Court must have regard forto the decision of the European Court of Justice (ECJ) in:
SABINE VON COLSON AND ELISABETH KAMANN v LAND NORDRHEIN-WESTFALEN ( NORTH-RHINE WESTPHALIA ),(quote reference)
In that case the ECJ stated:
- ALTHOUGH DIRECTIVE NO 76/207/EEC , FOR THE PURPOSE OF IMPOSING A SANCTION FOR THE BREACH OF THE PROHIBITION OF DISCRIMINATION , LEAVES THE MEMBER STATES FREE TO CHOOSE BETWEEN THE DIFFERENT SOLUTIONS SUITABLE FOR ACHIEVING ITS OBJECTIVE , IT NEVERTHELESS REQUIRES THAT IF A MEMBER STATE CHOOSES TO PENALIZE BREACHES OF THAT PROHIBITION BY THE AWARD OF COMPENSATION , THEN IN ORDER TO ENSURE THAT IT IS EFFECTIVE AND THAT IT HAS A DETERRENT EFFECT , THAT COMPENSATION MUST IN ANY EVENT BE ADEQUATE IN RELATION TO THE DAMAGE SUSTAINED AND MUST THEREFORE AMOUNT TO MORE THAN PURELY NOMINAL COMPENSATION SUCH AS , FOR EXAMPLE , THE REIMBURSEMENT ONLY OF THE EXPENSES INCURRED IN CONNEXION WITH THE APPLICATION .
The Court accordingly, in applying these principles, and taking into account the circumstances of this particular case, awards the Complainant the sum of €7,500 in respect of the breaches of Sections 19 and 21 of the Act being the sum of €1750 in respect of arrears of holiday pay and payment for public holidays and €5750 being compensation for the said breaches.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
4th January, 2011______________________
CON.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.