FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : SMART JIMOH EWANSHIHA T/A PROGRESSIVE SERVICES (REPRESENTED BY G. M. MESCAL & CO) - AND - ANNA BIELAK (REPRESENTED BY POLISH CONSULTANCY ENTERPRISE) DIVISION : Chairman: Mr Duffy Employer Member: Ms Cryan Worker Member: Ms Ni Mhurchu |
1. Appealing against a Rights Commissioner’s Decision r-093609-wt-10/RG.
BACKGROUND:
2. Ms Bielak commenced employment in April 2009 and worked as a part time cleaner until her employment ceased in February 2010.The case concerns a claim that she did not receive her full annual leave and public holidays entitlements. The Rights Commissioner heard the case on 1st September 2010 and issued her Decision dated 24th November, 2010.
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 10th January, 2011. The Court heard the appeal on the 13th May 2011, the earliest date suitable to the parties.
WORKER'S ARGUMENTS:
3. 1. The claim is that the Worker did not receive 10 days of annual leave and 3 day of Public Holidays which are her entitlements.
2. The Employer has no documentation in the statutory form which would confirm that holiday pay was paid.
COMPANY'S ARGUMENTS:
4. 1. The Worker received all her holiday pay entitlements but due to the abrupt nature of her termination it is accepted that she is owed approximately €102 under the 8% rule for January and February 2010.
DETERMINATION:
This is an appeal by Smart Jimoh Ewanshiha t/a Progressive Services against the Decision of a Rights Commissioner in a claim by Ms Anna Bielak under the Organisation of Working Time Act 1997. The Rights Commissioner found for the Claimant and awarded her compensation in the amount of €600.
It is the Claimant’s case that she worked for the Respondent between April 2009 and February 2010 and was not paid in respect of annual leave. The Complainant told the Court that she took two weeks holidays in July 2009 but was not paid in respect to this leave. She said that she took further holidays in 2010 for which she was not paid.
The Respondent told the Court that on or about July 2009 he paid the Claimant for the holidays in issue by cheque. The Claimant did not maintain records and relied on a cheque stub as evidence of the relevant amounts having been paid.
The Respondent did not maintain records in the statutory form as is required under Section 25 of the Act. Consequently the onus of proving compliance rests with the Respondent.
Following the hearing of this case the Respondent submitted a copy of a cheque dated 24th July 2009 drawn on the Bank of Ireland and made out in the Claimant’s favour in the amount of €633. The Respondent contended that this was a copy of the cheque by which the Claimant received her holiday pay. The cheque was endorsed by the Claimant and this was shown of the copy furnished to the Court.
This additional evidence was sent to the representative of the Claimant for comment. The Claimant’s representative replied by letter dated 31st May 2011 taking objection to the Court accepting this evidence after the hearing. The representative did not, however, deny that the cheque was received by the Claimant nor did he dispute the Respondent’s contention that it related to the Claimant’s holiday pay.
Conclusion
The Respondent told the Court in evidence that he paid the Claimant holiday by cheque in or about July 2009. He produced a cheque book stub in support of that claim. The copy of the returned cheque is corroborative of that evidence. Accordingly it is accepted that the holiday pay due to the Claimant in or about July 2009 was paid.
It is accepted that the Claimant was due €102 in respect of holiday pay on the termination of her employment in February 2010 which was not paid and remains due.
In these circumstances the Court determines that the Claimant is due €102 in respect to her entitlements under the Act and awards her compensation in that amount.
The appeal is allowed and the Decision of the Rights Commissioner is varied in the terms of this Determination.
Signed on behalf of the Labour Court
Kevin Duffy
14th July, 2011______________________
JFChairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.