FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : T&M FINANCIAL LTD T/A MORTGAGE PLUS - AND - MICHAEL BLOCK DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal of a Rights Commissioner's Decision R-114222-WT-11/DI.
BACKGROUND:
2. The case before the Court concerns the Employer’s appeal of Rights Commissioner’s Decision R-114222-WT-11/DI. The dispute relates to the Worker’s claim that during the course of his former employment with the Company, his Employer breached the terms of the Organisation of Working Time Act 1997 and he did not receive his proper holiday pay entitlements as provided for under the Act. The Employer rejects the Worker’s claim arguing that the Worker received his full holiday pay entitlements upon cessation of his employment with the Company. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 28thFebruary, 2012, the Rights Commissioner issued his decision as follows:
“In the absence of any evidence to contest the Claimant’s case, I find his complaint to be well founded. I order the Respondent to pay to the Claimant the sum of €1,650 in compensation for being in breach of s.23 of the 1997 Act. This award includes the Claimant’s financial loss of €1,153.85 with the balance of the award being compensation for the Respondent being in breach of s.23 of the 1997 Act”.
- On the 11thApril, 2012, 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. A Labour Court hearing was held on 18thJuly, 2012.
WORKER'S ARGUMENTS:
3. 1.The Worker asserts that the Employer breached the terms of the Organisation of Working Time Act 1997 and he did not receive his holiday pay entitlements.
EMPLOYER'S ARGUMENTS:
4. 1.The Employer contends that the Worker received his full holiday pay entitlements and there are no outstanding monies owed to the Worker.
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-114222-wt-11-DI of the Rights Commissioner delivered on 28 February 2012.
The Rights Commissioner decided that a complaint made by Mr Michael Block (“the Complainant”) under Section 27(2) of the Act that his employer Mortgage Plus (“the Respondent” or “the Employer”) has contravened Section 23(1) of the Act, was well founded and awarded him compensation in the sum of €1,650 which figure included a sum of €1153.85 compensation for the financial loss he incurred by way of unpaid holiday entitlement and the balance by way of compensation for the Respondent’s breach of the Act.
The Respondent appealed 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 Wednesday 18thJuly 2012. Both parties attended and presented their cases in person.
Background
The Complainant worked for the Respondent from 1 November 2010 until he tendered his resignation on 26 July 2011 by giving his employer four weeks’ notice in accordance with the terms of his contract of employment. On 27 July the Respondent instructed him not to return to work and dispensed with his services with immediate effect. A dispute between the parties regarding payment for the contractual period of notice ensued. This matter was finally settled after an exchange of correspondence on the issue. The parties did not reach agreement on the Complainant’s alleged entitlement to payment in respect outstanding holiday entitlements due to him at the termination of his employment. The Complainant then decided to initiate the proceedings that are now under appeal to this Court.
Complainant’s Position
The Complainant submits that he commenced working for the Respondent on 1 November 2010. He accrued an entitlement to annual leave in the course of his employment. He submits that he received 3 days annual leave in the course of the 2011/2012 statutory leave year. When his employment ended he submits that he had an outstanding entitlement to 10 days for which he did not receive payment. He submits that he is entitled to payment in respect of those days.
Respondent’s position
The Respondent submits that his annual leave year ran from January to December. He submits that the Complainant received 6 days leave in the relevant period. He submits that the Complainant submitted his notice on 26 July 2011 and was paid until 30thAugust 2011 which figure included payment in excess of his contractual payment in lieu of notice entitlement. He submits that this amounted to 4 days and that taken together these days and the annual leave the Complainant acknowledges he received discharge his contractual and statutory annual leave obligations to the Complainant.
Findings of the Court
The Court notes that the Complainant did not maintain records as required by Section 25 (1) of the Act. Section 25(4) of the Act provides that, where an employer fails to keep records under under Section 25(1) of the Act, the onus of proving“that the provisions of the Act have been complied with in relation to the employee lie on the employer.”
- (4) Without prejudice to subsection (3) , where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.
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
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 the course of the hearing the Respondent failed to establish that the Complainant had been granted his annual leave entitlement in respect of the relevant leave years. Accordingly he failed to discharge the onus of proving compliance with the provisions of Sections 19 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 rejects the appeal.
The Court awards the Complainant compensation in the sum of €1,650 inclusive of the amount due to him in respect of annual leave he was not granted by the Respondent in the relevant leave year and by way of compensation for the breach of the Act that this involved.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
8th August 2012______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.