FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : KETTLES COUNTRY HOUSE HOTEL - AND - IWONA RADECKA DIVISION : Chairman: Mr Hayes Employer Member: Ms Doyle Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner's Decision r-110116-wt-11/EH.
BACKGROUND:
2. The worker referred her case to the Labour Court on the 2nd December, 2012. The following is the Court's determination:
DETERMINATION:
This is an appeal by the Kettles Country House Hotel (“the Respondent”) against Rights Commissioner Decision no r-110116-wt-11/EH. The Rights Commissioner decided that complaints made by Ms Iwona Radecka (“the Complainant”) pursuant to Sections 14(1)(b) , 19 and 21(1) of the Organisation of Working Time Act, 1997 were well founded. He required the Respondent to pay the Complainant compensation of €3,000. This amount included both a sum in respect of both the actual economic loss she incurred and an amount that was intended to deter the Respondent “against future infractions” of the Act.
The Respondent appealed the Decision to the Labour Court.
Facts
The Complainant worked for the Respondent as an Accommodation Assistant from 28thSeptember 2010 to 31stJuly 2011. She was paid €8.65 per hour.
Complaints
Sunday Premium
Complainant’s Position
The Complainant submits that contrary to the provisions of Section 14(1) of the Act she was not paid a premium in respect of the hours she was required to work on Sunday.
Respondent’s Position
The Respondent acknowledged that no hourly premium was paid in in respect of Sunday work. However it submitted that it complied with the provisions of Section 14 of the Act by providing the Complainant with access to free food whilst on duty and by paying her for all of the work breaks she took in the course of her shift.
Findings of the Court
Section 14 of the Act provides
- 14.—(1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely
- (a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or
(b) by otherwise increasing the employee's rate of pay by such an amount as is reasonable having regard to all the circumstances, or
(c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or
- (a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or
It is common case that the Respondent did not increase the Complainant’s rate of pay or grant paid time off as provided for in Sections 14(1)(b)and 14(1)(c) of the Act.
The Court finds that the provision of paid breaks and or access to free hot food in the course of a shift does not meet the requirements of Section 14(1)(a) of the Act. The Court notes that the Complainant submits that she did not always avail of the free food and on many occasions the pressure of work prevented her from taking her scheduled breaks.
The Court finds that the Complaint is well founded.
Section 21 Public Holidays
Complainant’s Position
The Complainant submits that, contrary to the provisions of Section 21(1) of the Act, she did not receive her entitlements in respect of the public holidays she worked in the relevant period. She submits that the documentation submitted by the Respondent contained errors and mistakes that render them unreliable. She submitted that the Court should not accept them as reliable records of the payments she actually received.
Respondent’s Position
The Respondent submits that the records show that the Complainant was paid strictly in accordance with the Provisions of Section 21 of the Act for the work she performed on Public Holidays. The Respondent produced payroll records to the Court in support of this submission. The Respondent submitted that the Complainant signed pay slips acknowledging receipt of payment for work done on Public Holidays. The signed pay slips were produced to the Court.
Findings of the Court
Section 21 of the Act provides
- 21.—(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.
The Court, having examined the records produced by the Respondent, finds that they are reliable and that they show that the Complainant was paid an additional day’s pay calculated in accordance with the provisions of S.I. no 475/1997 in respect of each of the Public Holidays on which she worked in the relevant period.
The Court finds that the Complaint is not well founded. The Rights Commissioner’s Decision in respect of this Complaint is set aside.
Section 19 Annual Leave
Complainant’s Position
The Complainant submits that, contrary to the provisions of Section 19 of the Act she did not receive her full holiday entitlement in the relevant leave year. She submits that she has accrued an entitlement to annual leave seven days of which are outstanding.
Respondent’s Position
The Respondent produced records to the Court purporting to show that the Complainant was paid for and received her full holiday entitlement in the relevant leave year.
Findings of the Court
The Court has examined the records submitted by each of the parties relating to this Complaint. The Court finds that the records submitted by each of the parties are consistent with each other, are reliable and demonstrate that the Complainant received her full holiday entitlement in respect of the relevant leave year.
The Court finds that the Complaint made pursuant to Section 19 of the Act is not well founded. The Decision of the Rights Commissioner in this regard is set aside.
Determination
The Court determines that the Complaints made pursuant to Sections 19 and 21 of the Act are not well founded. The decision of the Rights Commissioner in respect of these Complaints is set aside.
The Court further determines that the Complaint made pursuant to Section 14 of the Act is well founded. The Court finds that the Complainant has been denied her entitlements under Section 14 of the Act. The Court requires the Respondent to pay the Complainant the sum of €2,000 compensation arising out of the denial of her entitlements under Section 14 of the Act.
The Decision of the Rights Commissioner is set aside.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
4th May, 2012______________________
COFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Colm O'Flaherty, Court Secretary.