FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : JM MANAGEMENT SERVICES - AND - MR CHRISTOPHER GORMAN DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. Appeal Of Right Commissioners Decision r-113485-wt-11/JC
BACKGROUND:
2. A Rights Commissioner hearing took place on the 7th November 2011 and a Decision was issued on the 5th January 2012.
The Employer appealed the Decision of the Rights Commissioner to the Labour Court on the 9th February 2012, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 4th May 2012.
DETERMINATION:
- This is an appeal by J.M. Management Services (the Respondent) against Rights Commissioner Decision No r-113485-wt-11/JC that found a complaint made by Mr Christopher Gorman (the Complainant) under the Organisation of Working Time Act 1997 was well founded. The Rights Commissioner required the Respondent to pay the Complainant compensation in the sum of €4,000.
The case came on for hearing before the Court on Friday 4thMay 2012.
Complainant’s Case
The Complainant submits that was employed as a doorman at a Licensed Premises from September 2009 until 15thMay 2011. He presented a complaint to the Rights Commissioner on 12thJuly 2011 under the Organisation of Working Time Act 1997. In total he made three complaints to the Rights Commissioner- 1. He alleges that whilst he took two weeks holidays commencing the 5thMay 2011 he received holiday pay in respect of one of those weeks only.
2. He alleges that when required to work on Public Holidays he received no compensatory payment or paid time off contrary to the provisions of the Act.
3. He alleges that though he was required to work on Friday Night between the hours of 6pm and 1am and on Saturday night between the hours of 6pm and 2am he was not allowed any rest break during that period.
The Respondent’s Case
Mr James McGinn on behalf of the respondent submits the contract for the provision of door services to the licensed premises changed hands on February 1st2011 and that his company’s involvement with this case commenced on that day. He submits that the complainant was paid a composite rate that included holiday pay and that he was fully paid in respect of his holiday entitlements in this regard. He further submits that the complainant received his full statutory entitlements in respect the hours he worked on public holidays. Finally he submits that there was two door staff in attendance at all times and the Complainant had ample opportunity to avail of his statutory entitlements to breaks and did so.
Findings of the Court
The Court finds that a transfer of undertakings took place in January/February 2011 and that the complainant’s employment transferred from Shamrock Security to JM Management Services at that time.
Section 25 of the Act requires an employer to keep records of the hours worked by an employee.
Section 25(4) provides- (4) Without prejudice tosubsection (3), where an employer fails to keep records undersubsection (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.
In this case the Respondent advised the Court that it did not keep records in the prescribed format. Accordingly the onus of proving that the provisions of the Act were complied with in this case lies with the Respondent.
Respondent was not in a position to demonstrate to the Court that it has acted in compliance with the provisions of the Act in respect of the issues in dispute. Accordingly it failed to discharge the burden of proving compliance with the provisions of the Act as required by Section 25(4) of the Act.
The Court finds that in the absence of records or other evidence to the contrary the Complainant, contrary to the provisions of Section 12 of the Act, did not receive his statutory rest breaks whilst at work.
The Court finds that the complaint made pursuant to the provisions of Section 12 of the Act is well founded.
Section 21 of the Act provides- (1) Subject to the provisions of this section, 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:In the relevant period the Complainant was entitled to compensation in respect of 3 public holidays i.e. St Patrick’s Day, Easter Monday, and the first Monday in May.
- (a) a paid day off on that day,
The Respondent has failed to establish on credible evidence or through proper records that the complainant received any of the entitlements set out in Section 21(1) above.
Accordingly the Court finds that the Complaint under Section 21 of the Act is well founded.
Annual Leave
The Complainant was, in accordance with the provisions of Section 19 of the act entitled to four weeks annual leave in the relevant period.
The Court finds that the complainant was not granted his entitlement to four weeks leave as set out in the Act.
Section 20(2) provides
(2)The pay in respect of an employee's annual leave shall—- (a) be paid to the employee in advance of his or her taking the leave,
The Court finds that the Complainant, contrary to the provisions of Section 20(2) of the Act, was not paid his holiday pay entitlement in advance of his taking the annual leave.
Accordingly the court finds the complaints under section 19(1) and 19(2) of the Act are well founded.
Determination
The Complaints before the Court are well founded.
The Court upholds the decision of the Rights Commissioner and requires the Respondent to pay the Complainant compensation in the sum of €4,000 which sum includes wages in the amount of €1548 in respect of holiday pay.
The Court so determines. - 1. He alleges that whilst he took two weeks holidays commencing the 5thMay 2011 he received holiday pay in respect of one of those weeks only.
Signed on behalf of the Labour Court
Brendan Hayes
10th July, 2012______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.