DWT1242

FULL RECOMMENDATION

WTC/10/256

DETERMINATIONNO.DWT1242

(r-093250-wt010/GC)

SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997

PARTIES :

PEADAR HANNON
(REPRESENTED BY ARRA HRD LIMITED)

- AND -

ROBERT STACHNIUK
(REPRESENTED BY POLISH CONSULTANCY ENTERPRISE.)

DIVISION :

Chairman: Mr Hayes
Employer Member: Ms Cryan
Worker Member: Ms Ni Mhurchu

SUBJECT:
1. Appealing against a Rights Commissioner's Decision r-093250-wt-10/GC

BACKGROUND:

2. The Worker was employed as a Plasterer from 3rd March 2006 until 6th November 2009. The Worker contends that he did not receive his full entitlement of annual leave on ceasing his employment. The Rights Commissioner found in favour of the Worker and awarded him €750 in compensation.

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 November, 2010. The Court heard the appeal on the 21st February, 2012, the earliest date suitable to the parties.

WORKER'S ARGUMENTS:

3. 1. The wage sheets presented to the Court were not contemporaneously generated and cannot be considered reliable, nor are they in the required format as stated in Section 25 of the Act.

EMPLOYER'S ARGUMENTS:

4. 1. The records show that the Worker was paid his full entitlement of annual leave and there are no outstanding payments due to him.

DETERMINATION:

Peadar Hannon (the “Appellant”) has brought this appeal pursuant to Section 28(1) of the Organisation of Working Time Act 1997 (the “Act”) against Decision r-093250-wt-10/GC of the Rights Commissioner made on 18^thNovember 2010 (the “Decision”)

The Rights Commissioner decided that a complaint by Robert Stachniuk (the “Complainant”) pursuant to the Act was well-founded and directed that the Appellant pay the Complainant €750 compensation for breaches of the Act.

The appeal came on for hearing on 22^ndFebruary 2012. The Appellant attended the hearing and was represented by Michael O’Sullivan, ARRA HRD Ltd. The Complainant did not attend the hearing. He was represented by Blazej Nowak, Polish Consultancy Enterprise.

Background:

The Appellant employed the Complainant as a construction operative/plasterer from 3^rdMarch 2006 until his employment terminated on 6^thNovember 2009. He was paid €603 per week.

The Complainant complained to the Rights Commissioner that, contrary to the provisions of Section 19 of the Act he did not receive his full annual leave entitlement for the leave year January – December 2009. He complained that he was, at the time of the termination of his employment, left short one week of holiday pay due to him.

The Appellant submitted that the Complainant had been paid his full holiday entitlement for the relevant year.

The Rights Commissioner upheld the complaint.

Complainant’s Position

Mr Nowak submitted that the Appellant did not maintain records in the prescribed format and pursuant to Section 25 of the Act the onus of proving compliance with the Act lies with that side. He submitted that the documents submitted by the Appellant that purported to show that he had met his obligations to the Complainant under the Act were not reliable and should be disregarded.

Appellant’s Position

The Appellant told the Court that he paid the Complainant €100 per day. He told the Court that the records show that he paid the Complainant that amount in respect of each week of the annual construction industry shutdown. He also told the Court that the records show that he paid the Complainant his full entitlement for the Good Friday and Easter holidays that occurred that year. In total he told the Court that the records show that he paid the Complainant 14 days holidays during that calendar year. He said that this amounted to his full holiday entitlement.

Findings of the Court

It was common case that the Complainant had accrued an entitlement to 14 days annual leave in the calendar year 2009. The Appellant presented records to the Court that purported to show that the Complainant was paid in respect of the 14 days annual leave he had accrued that year. The Complainant did not attend the Court to give evidence in the case.

Accordingly, on the uncontested evidence of the Appellant and the records provided to it, the Court upholds the appeal and sets aside the Decision of the Rights Commissioner.

The Court so Determines.

Signed on behalf of the Labour Court

Brendan Hayes
3rd April, 2012______________________
JFDeputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.