FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : CLEAN PLUS LTD - AND - MS ANNA SZKUTNIK (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner's Decision R-112011-WT/JT.
BACKGROUND:
2. The case before the Court concerns the Employer's appeal of Rights Commissioner's Decision R-112011-WT/JT. The dispute relates specifically to the Worker's claim that during the course of her employment, the Employer breached the terms of the Organisation of Working Time Act, 1997 and she did not receive her proper holiday pay entitlements. The Worker was previously employed as a cleaning operative for a period of time from February 2010 until June 2011. The Worker maintains that her normal working week comprised of twenty seven hours up until October 2010, when the Employer reduced her hours of work to nine hours per week. The Worker contends that she received holiday pay for a total of nine hours per week when she was entitled to be remunerated for twenty seven hours. The Employer rejects the Worker's claim arguing that she was remunerated fully in accordance with her contractual entitlements. The matter was referred to a Rights Commissioner for investigation.
On the 20th February, 2012 the Rights Commissioner issued his decision as follows:
"As there was an unexplained absence of the Respondent I accept the uncontested evidence presented on behalf of the Claimant. I find the claim well founded and make the following awards:
Organisation of Working Time Act 1997
I award €2,000".
WORKER'S ARGUMENTS:
3. 1. The Worker contends that she did not receive the appropriate remuneration for holiday pay and there is outstanding monies owed to her.
EMPLOYER'S ARGUMENTS:
4. 1. The Employer asserts that the Worker received her full holiday pay in accordance with her contractual entitlements and furthermore there is no monies owing to the Worker.
DETERMINATION:
The Complainant brought a complaint before a Rights Commissioner pursuant to the Organisation of Working Time Act 1997 (the Act) alleging breaches of Sections 17, 19 and 21. The Complaint under section 17 was withdrawn. The Rights Commissioner upheld the complaints under section 18 and 21 and awarded the sum of €2,000.00.The Employer appealed the Decision.
The Employer did not attend before the Rights Commissioner for reasons which were explained to the Court.
For ease of reference the parties are referred to as they were at first instance. Hence Ms Anna Szkutnik is referred to as “the Complainant” and Clean Plus Limited is referred to as “the Respondent”.
The Complainant submitted a claim under the Act to the Rights Commissioner on 27thJuly 2011.
Background
The Respondent operated a contract cleaning business. The Complainant was employed by the Respondent as a Cleaner from 10thFebruary 2010 until 28thJune 2011. The Complainant was paid €9.50 per hour in accordance with the Contract Cleaning Industry JLC. Up until 15thOctober 2010 she was working 27 hours per week and from 15thOctober 2010 due to the relocation of a client her hours were reduced to 9 hours per week. The Complainant was offered additional hours if she was prepared to move to the client’s new location, which she declined.
The Complainant’s Case
Mr Richard Grogan, Richard Grogan & Associates Solicitors on behalf of the Complainant informed the Court that the claim under section 21 of the Act in respect of public holidays was withdrawn. In pursuance of the claim under section 19 of the Act Mr Grogan submitted that the Complainant did not received appropriate payment in accordance with S.I. 475 for leave which accrued from 15thOctober 2010 until 28thJune 2011 when the Complainant was working 9 hours per week. Mr Grogan submitted to the Court that the Complainant’s annul leave payments for the period in question did not comply with Organisation of Working Time (Determination of Pay for Holidays) Regulations (S.I. 475 of 1997).
The Respondent’s Case
The Respondent denied that the Complainant had not been given her full annual leave and public holiday entitlements and provided details of hours worked and annual leave payments made to the Complainant for the period of her employment.
Conclusions of the Court
The Court notes that there is no dispute about the facts of this case. The issue relates to the calculation of pay for the purposes of annual leave. Mr Grogan submitted that the Complainant should have been paid annual leave payments at a rate which reflected her pay when she was working 27 hours per week, instead she was paid annual leave reflective of her pay at 9 hour per week.
The calculation of pay for annual leave and public holidays is governed by the Organisation of Working Time (Determination of Pay) Regulations 1997, S.I. 475 of 1997 (the Regulations). Regulation 3(2) prescribes the formula for the calculation of the rate payable in respect of annual leave in the case of an employee whose pay is calculated by reference to a fixed hourly rate. It provides as follows: -
(2) If the employee concerned’s pay is calculated wholly by reference to a time rate or a fixed rate or salary or any other rate that does not vary in relation to the work done by him or her, the normal weekly rate of his or her pay, for the purposes of the relevant sections, shall be the sum (including any regular bonus or allowance the amount of which does not vary in relation to the work done by the employee but excluding any pay for overtime) that is paid in respect of the normal weekly working hours last worked by the employee
The Court is satisfied that the normal rate of pay for the Complainant did not vary and she was paid the appropriate rate of pay for annual leave taken between 15thOctober 2010 and 28thJune 2011.
Determination
For the reasons referred to above the Court is satisfied that the Respondent did not contravene the Organisation of Working Time Act 1997 in relation to the Complainant. The Respondent’s appeal is allowed and the decision of the Rights Commissioner is set aside and substituted with this Determination.
Signed on behalf of the Labour Court
Caroline Jenkinson
27th June 2012______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.