FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : OLTEC GROUP TRADING LIMITED - AND - KRASIMIR BANKOV (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal against a Rights Commissioner's Decision R-096815-WT-10/RG
BACKGROUND:
2. The worker was employed by the Company on the 27th November, 2008, and worked an average 4 day/30 hour week. Following an incident the worker was removed from his contract on the 27th April, 2010, but was told that there might be some occasional work available. His case is that he was not paid the correct amount for 2 Bank Holidays on the 5th April, 2010, and the 3rd May, 2010. The worker referred his case to a Rights Commissioner whose decision was as follows:
"On the basis of the evidence and in accordance with Section 27(3) of the Act I declare the complaint is not well founded."
The worker appealed the decision to the Labour Court on the 10th May, 2010, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 23rd August, 2011. The employer did not attend the hearing but supplied documentation supporting its claim that the worker was paid all monies due. The following is the Court's determination:
DETERMINATION:
The Claimant brought a complaint before a Rights Commissioner pursuant to the Organisation of Working Time Act, 1997, (the Act) alleging breaches of Section 21. The Rights Commissioner held that the case was not well-founded.The Claimant appealed the Decision of the Rights Commissioner. The Claimant submitted that the Employer had failed to comply with Section 21(1)(a) of the Act in respect of two public holidays on 5th April and 3rd May, 2010, by not paying 7.5 hours' pay in respect of each day.
The Employer did not attend before the Labour Court but did submit a statement outlining its position and submitted payslips to demonstrate that all statutory payments had been made to the Claimant in respect of the two public holidays.
The calculation of pay for public holidays is governed by the Organisation of Working Time (Determination of Pay) Regulations 1997, S.I. 475 of 1997 (the Regulations).The Court notes that the Claimant was not rostered to work on either of the public holidays in question and accordingly in accordance with the Regulations he was entitled to be paid one fifth of his normal week’s pay in respect of the public holidays.
Public Holiday - 5th April 2010
Prior to 27th April, 2010, the Claimant’s normal weekly working pattern was a four-day week, 7.34 hours per day. Based on the information supplied to the Court, there is no dispute that the Claimant was paid 5.88 hours in respect of the public holiday which fell on 5th April 2010. Therefore, the Court is satisfied that the Claimant was paid 1/5th of his normal weekly hours in respect of that public holiday and accordingly the Court is satisfied that the Employer fulfilled its obligation under Section 21 of the Act.
Public Holiday - 3rd May 2010
The Court also notes that by 27th April 2010, the Claimant was required to work two days per week, 6.92 hours per day. Based on the information supplied to the Court, there is no dispute that the Claimant was paid 2.76 hours in respect of the public holiday which fell on 3rd May, 2010. Therefore, the Court is satisfied that the Claimant was paid 1/5th of his normal weekly hours in respect of that public holiday. Therefore, the Court is satisfied that the Employer fulfilled its obligation under Section 21 of the Act.
Having considered the Claimant's appeal of the Rights Commissioner's Decision, the Court concurs with the findings of the Rights Commissioner. The appeal fails.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
5th September, 2011______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.