FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : OCS ONE COMPLETE SOLUTION (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - KAROL RUTHKOWSKI (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Mr Nash |
1. Appeal of Rights Commissioner's Decision No: r-087607-wt-09/GC
BACKGROUND:
2. This case concerns an appeal by the worker of Rights Commissioner's Decision No: r-087607-wt-09/GC. The dispute concerns a claim by the worker that he did not receive paid annual leave in accordance with the provisions of the Act. Management's position is that it discharged its obligations under the Act as it provided the worker with annual leave in compliance with the Act and that he was paid a composite rate of pay which included holiday pay. The dispute was referred to a Rights Commissioner for investigation. Her Recommendation issued on the 17th May, 2010 and did not find in favour of the worker's claim. On the 26th May, 2010 the worker appealed the Rights Commissioner's Decision in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 4th January, 2011. The following is the Court's Determination:
DETERMINATION:
This matter come before the Court by way of an appeal by Mr Ruthkowski (the Claimant) against the decision of a Rights Commissioner in a claim against his former employer, One Complete Solutions Limited under the Organisation of Working Time Act 1997 (the Act). The complaint to the Rights Commissioner alleged a number of contraventions of the Act, none of which were found to be well founded by the Rights Commissioner. However this appeal is confined to the Claimant's claim that he did not receive paid annual in accordance with the Act.
Factual Background to the Claim.
The Claimant was employed by the Respondent as a casual stock-take auditor to undertake work at the retail premises of the Respondent’s customers throughout Ireland. The Claimant was employed as and when required by the Respondent and when employed he was guaranteed a minimum of six hours pay. His hours and pattern of work varied considerably.
The claimant was paid at two-week intervals for the work undertaken during the pay reference period. In each pay reference period an element was included in the Claimants pay to include payment for holidays pro rated by reference to the hours worked relative to a full entitlement of 21 days annual leave per year. However there was no suggestion that the Claimant’s employment terminated after each assignment.
The Law
At the first hearing in this case the Court drew the attention of the parties to what it regarded as relevant authorities on the point in issue in this case. It referred to the Determination of this Court in Determination DWT017Cementation Skanska and Traceyand to the Judgment of the ECJ in joined casesRobinson -Steel v R.D. Retail Services Ltd, Clarke v Frank Staddon Ltd and Caulfield v Hanson Clay Products Ltd, [2006] IRLR 386.
The Court invited the parties to make further submissions on the relevance of the decision reached in these cases to the question of whether the practice of including an element in a workers normal pay to included holiday pay constitutes sufficient compliance with Article 7 of Directive 93/104/EC and s.20 of the Act.
InTracey, the Court held that in paying the Claimant an additional 50p per hour to cover holiday pay the Respondent did not comply with the Act. in Robinson-Steel the ECJ held that: -
- " Article 7 of Directive 93/104 precludes the payment for minimum annual leave within the meaning of that provision from being made in the form of part payment staggered over the corresponding annual period of work and paid together with the remuneration for work done, rather than in the form of a payment in respect of a specific period during which the worker actually takes leave."
Submissions of the Parties
The parties subsequently made submissions on the findings in these cases.
The Respondent accepted that it was in error in paying holiday pay as an additional element in the Claimants ordinary remuneration. It told the Court that the practice was discontinued. It submitted that in this case it was accepted that the Claimant had received payments equivalent to the holiday pay to which he was entitled and, in these circumstances, the Court should not make any monitory award.
In his submission the Solicitor for the Claimant said: -
- "The employer has, through its representatives, accepted that the payment of annual leave was not paid at the appropriate time and in the appropriate manner."
"Saying this, the Respondent company has stated that it is amending the way in which annual leave will be paid to casual employees and the respondent [sic] would have to accept that any redress as regards the issue of the holiday pay issue while it would have to be effective would not need to be dissuasive of the employer as the employer, through his representative, has given an undertaking effectively to amend the manner in which holiday pay is paid."
"The representative of the complainant will have to accept that the respondent company has approached the issue now in a very fair and reasonable way as regards rectifying matters and would accept that this approach is one which would have to be taken into account."
Conclusion of the Court
The Court is satisfied that the Employer in this case did contravene the Act in not paying the Claimant in respect of annual leave when the leave was being taken or on the cessor of employment. However it is also satisfied that this was due to the employers mistaken view of the law and that the Claimant did not incur any pecuniary loss in consequence of the impugned practice, nor did the employer make any financial gain. The Court has also taken into account the attitude adopted by the Claimant through his Solicitor.
In these circumstances the Court finds that the complaint herein is well founded. In accordance with s.27(3) of the Act the Court directs the employer to comply with the relevant provisions of the Act and makes no further order.
Signed on behalf of the Labour Court
Kevin Duffy
18th May 2011______________________
AHChairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.