FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : TITHE SAOIRE CHLEIRE TEO - AND - NOEL O' DRISCOLL (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner's Decision r-082015-wt-09/ JOC.
BACKGROUND:
2. 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 30th March, 2010. The Court heard the appeal on 12th May, 2010, the earliest date suitable to the parties. The following is the Determination of the Court:
DETERMINATION:
The matter came before the Court by way of an appeal by the Company against the decision of a Rights Commissioner under the Organisation of Working Time Act, 1997 (the Act) in which the Rights Commissioner found in favour of the Complainant and awarded him €7,500 in compensation.
The Company appealed the Rights Commissioner’s Decision.
The Company did not attend before the Rights Commissioner for reasons, which were explained, to the Court.
For ease of reference the parties are referred to in this Determination as they were at first instance. Hence Mr. O’ Driscoll, is referred to as the Complainant and Tighe Saoire Cheire Teo, is referred to as the Respondent.
The claim under the Act was referred to the Rights Commissioner on 16th September 2009. The Complainant was employed from August 2007 until 31st March 2010.
The Union on behalf of the Complainant submitted that he did not receive his entitlement to annual leave for the years 2007, 2008 and 2009. Section 27(4) of the Act allows for complaints to be presented within 6 months of the alleged contravention the Court, therefore, it determines to entertain all complaints appertaining to contraventions of the Act alleged to have occurred on or after 16th March 2009 (hereafter the relevant period). As the leave year 2008 to 2009 covered the period 1st March 2008 until 31st March, 2009, hence any contravention of the Act arising from the Respondent’s failure to provide the Complainant with the requisite annual leave in respect of that leave year accrued within the relevant period. Thereafter, as any alleged contravention of the Act under Section 19 cannot be examined until the end of the leave year 31st March 2010, the Court is not in a position to decide whether any contravention occurred for the period from 1st April 2009 up to the date of claim on 16th September 2009.The Complainant’s duty roster required him to work two weeks on followed by two weeks off, working 11 hours per day Monday to Sunday inclusive, i.e. 77 hours per week, 154 hours per fortnight. The Union submitted that no period of time was allocated to paid annual leave, in breach of Section 19 of the Act.
The Respondent submitted that the Complainant’s hours varied from Winter to Summer time and submitted details of the roster for both periods. Based on this information the Court finds that during the Summer months, from 1st June to 14th September, the Complainant worked 126 hours per fortnight and during the Winter months he worked 75 hours per fortnight. Therefore, the Court is satisfied that the Complainant worked in excess of 1365 hours in a leave year, giving him an entitlement to four weeks annual leave in accordance with Section 19 of the Act.
As outlined above the Court had determined that the relevant period in respect of the Complainant which the Court must consider for the purposes of the claim herein relates to the period from 1st March 2008 until 31st March, 2009.
The Respondent stated that the Complainant was made aware that the two weeks off period consisted of both rest periods and annual leave and thereby held that as the employer has the right under Section 20(3) of the Act, to decide on the times at which annual leave may be granted, it was fulfilling its statutory duty by allowing annual leave to be taken during the two weeks off period.
This Court has considered the question of the right to paid annual leave in Royal Liver Assurance Limited v SIPTU, Determination DWT0141, and held as follows:-
- “In addressing the employer’s contention that the claimants have, in reality, received their entitlements under the Act, it is necessary to consider the nature and scope of the statutory entitlement of workers to paid leave and of the concomitant duty on employers to grant that leave.
While a right to paid annual leave has long been a feature of employment law in Ireland, it is now provided for by Article 7 of Directive 93/104/EC concerning certain aspects of the organisation of working time. Section 19 of the Act gives effect to Article 7 of the Directive and must be interpreted so as to achieve the result envisaged by the Directive.
The nature and scope of the right which Article 7 of the Directive was intended to confer was considered by the ECJ in caseC-173/99, Broadcasting, Entertaining, Cinematographic and Theatre Union (BECTU) v Secretary of State for Trade and Industry, [2001] IRLR 560.In a wide ranging opinion delivered on 8th February 2001, Advocate General Tizzano traced the legislative history of Article 7 and concluded that the right to paid annual leave constitutes a fundamental social right which is characterised in the Directive as an automatic and unconditional right granted to every worker.
The term “paid annual leave” is not defined in the Act or in the Directive. It is, however, a term of common usage in industrial relations and is well understood as meaning a period of rest and relaxation during which a worker is paid his or her normal wages without any obligation to work or provide any service to the employer. 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.- In the present case the claimants do not receive any payments from the employer, which are specifically in respect of holidays. It is accepted that they do receive commission on money collected which accrues to the employer during holiday periods. However, it cannot be said that they are thus afforded an automatic and unconditional right to paid leave. Any such payments are made pursuant to their contracts of employment and are in consideration of the service which the claimants provide to the employer in collecting money either before or after their holidays. They are also conditional on the money due actually being collected.”
- In the present case the claimants do not receive any payments from the employer, which are specifically in respect of holidays. It is accepted that they do receive commission on money collected which accrues to the employer during holiday periods. However, it cannot be said that they are thus afforded an automatic and unconditional right to paid leave. Any such payments are made pursuant to their contracts of employment and are in consideration of the service which the claimants provide to the employer in collecting money either before or after their holidays. They are also conditional on the money due actually being collected.”
Determination
The Court determines that the complaint herein is well founded, however, the Court varies the quantum of compensation awarded by the Rights Commissioner. In this case the Court determines that the Respondent must pay the Complainant the sum of €3000 to include an element of compensation.
The Rights Commissioner’s Decision is varied accordingly.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
30th May, 2011______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.