FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : RODDY MOONEY MCCARTHY - AND - MS ELLEN WHELAN DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner's Decision R-116238-WT-11/JT.
BACKGROUND:
2. The case before the Court concerns the Worker’s appeal of Rights Commissioner’s Recommendation R-116238-WT-11/JT. The dispute relates to the Worker’s claim that during the course of her former employment with the Company, her Employer breached several sections of the Organisation of Working Time Act 1997 and she did not receive her proper annual leave and public holiday pay entitlements as provided for under the Act. The Employer rejects the Worker’s claim maintaining that the Worker entered into a verbal contract acknowledging that she was fully aware that she would not receive holiday pay. The Employer further contends that the Worker was employed on a casual part-time basis and she was paid an hourly rate of pay to reflect the casual nature of the employment. The Employer rejects the claim that he has breached the terms of the Act. The matter was referred to a Rights Commissioner for investigation
and recommendation. On the 28thMarch, 2012, the Rights Commissioner issued his recommendation as follows:
“I have considered the submissions of both parties. In considering these I have found the Claimant evidence too vague and imprecise to sustain a complaint under this Act. I therefore do not find the claim well founded and it fails”.
On the 1stMay, 2012, the Worker appealed the Rights Commissioner’s recommendation to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act 1997. A Labour Court investigation was held on the 27thJuly, 2012.
WORKER'S ARGUMENTS:
3. 1.The Worker contends that she did not receive any annual leave or public holiday pay throughout the totality of her employment with the Company.
2.The Worker asserts that she requested public holiday pay from her Employer on a number of occasions however she was refused same.
EMPLOYER'S ARGUMENTS:
4.1.The Employer asserts that the Worker knowingly entered into a contract of employment that did not provide for holiday pay.
2.The Employer is of the view that the Worker is not entitled to holiday pay and there are no outstanding monies owed to her.
DETERMINATION:
The case comes before the Court by way of an appeal under Section 28(1) of the Organisation of Working Time Act 1997 (“the Act”) against Decision number r-116238-11/JT of the Rights Commissioner delivered on 28 March 2012.
The Rights Commissioner decided that a complaint made by Ms Ellen Whelan (“the Complainant”) under Section 27(2) of the Act that her employer Roddy Mooney McCarthy (“the Respondent” or “the Employer”) has contravened Section 23(1) of the Act, was not well founded.
The Complainant appealed against the Rights Commissioner’s Decision to the Labour Court under Section 28(1) of the Act.
The case came on for hearing before the Court on Friday 27thJuly 2012. Both parties attended the hearing of the appeal. Mr Peter Whelan represented the Complainant. Mr Aidan Roddy represented the Respondent.
Background
The Complainant worked for the Respondent in a part time capacity in 2010 while pursuing her studies at university. Her employment thereafter became intermittent. In February 2011 her employment pattern became more stable and increased from 11 hours per week in March 2011 to a maximum of 38.5 hour in week commencing 27 August 2011. She finally ceased working for the Respondent on 19 September 2011.
Preliminary Issue
The Complainant, pursuant to Section 27(5) of the Act sought an extension of time for the bringing of the Complaint. She submitted that when she sought her rights and entitlements under the Act from her employer in May 2011 she was effectively threatened with dismissal. Accordingly she felt she could not pursue the dispute without putting her employment in jeopardy.
The respondent submits that he was never approached by the complainant seeking to exercise her entitlement to annual leave. He submits he was approached regarding her entitlement to payment for public holidays. He denied that he ever threatened her with dismissal.
Findings of the Court
The Court finds that the Complainant sought to exercise her entitlements under the Act when she approached the complainant in May 2011 seeking payment for the relevant Public Holiday. In his own submission to the Court the Respondent submitted that when he rejected this request he advised the Complainant that she was not under any obligation to continue to work for the practice and was free to leave at any time. The Court takes the view that this was in effect a veiled threat to the Complainant’s employment and that he concern regarding her continued employment was real and proportionate.
In these circumstances the Court allows the extension of time sought in this case.
Substantive Issue
Complainant’s Position
The Complainant submits that, contrary to the provisions of Section 19 of the Act, she did not receive annual leave whilst working for the Respondent. She further submits that she was not afforded the entitlement in respect of Public Holidays set out in Section 21 of the Act. She further submits that contrary to the provisions of Section 23 of the Act she was not afforded her entitlements to outstanding annual leave on the cessation of her employment with the Respondent.
Respondent’s position
The Respondent submits that he entered into a contract of employment with the complainant for hourly paid work at the rate of €10 per hour that had no provision for holiday pay. He submits that the complainant freely entered into the contract and at no stage raised the issue of an entitlement to annual leave until September 2011. He submits that the complainant sought payment for a Public Holiday in May of 2011 but when this was refused the Complainant did not pursue the matter further. He acknowledged that he did not grant the Complainant annual leave in the course of her employment; payment for public holidays that fell during that time or compensation for unpaid leave not granted to her at the cessation of her employment.
Findings of the Court
The Law
Section 19 of the Act provides
19.—(1)Subject to theFirst Schedule(which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in thisActreferred to as “annual leave”) equal to—
- (a)4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),
- (b)one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or
- (c)8 per cent of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):
- Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.
Section 23(1) of the Act provides
Section
23.—(1)Where—
- (a)an employee ceases to be employed, and
- (b)the whole or any portion of the annual leave in respect of the current leave year or, in case the cesser of employment occurs during the first half of that year, in respect of that year, the previous leave year or both those years, remains to be granted to the employee,
- the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave.
In respect of entitlement to Public Holidays Section 21 of the Act provides
21.—(1)Subject to the provisions of thissection, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—
- (a)a paid day off on that day,
- (b)a paid day off within a month of that day,
- (c)an additional day of annual leave,
- (d)an additional day’s pay:
- Provided that if the day on which the public holiday falls is a day on which the employee would, apart from thissubsection, be entitled to a paid day off thissubsectionshall have effect as ifparagraph (a)were omitted therefrom.
Section 22 deals with the calculation of the rate of pay applicable on a public holiday
22.—(1)The rate—
- (a)at which an employee is paid in respect of a day off undersection 21, and
- (b)of an employee’s additional day’s pay under thatsection,
- shall be such rate as is determined in accordance with regulations made by the Minister for the purposes of thatsection.
In the course of the hearing the Respondent acknowledged that the Complainant had not been granted her annual leave entitlement in respect of the relevant leave years. He also acknowledged that the complainant had not been afforded her entitlement to Public Holidays as provided for in Section 21 of the Act. Accordingly he failed to comply with the provisions of Sections 19, 21 and 23 of the Act as required by Section 25(4) of the Act. Accordingly the Court finds that the Complaint is well founded.
Determination
The Court determines that the Complaint is well founded and upholds the appeal.
The Court awards the Complainant compensation in the sum of €1,800 which amount includes the amount of holiday pay outstanding at the cessation of the Complainant’s employment and compensation for the breaches of the Act involved.
The Decision of the Rights Commissioner is set aside.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
2nd August 2012______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.