FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : EXPD8 LTD - AND - MS KATHLEEN MULRANEY DIVISION : Chairman: Mr Duffy Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner's Decision r-111588-wt-11/RG.
BACKGROUND:
2. The Employer appealed the Rights Commissioner's Decision to the Labour Court on 16th February, 2012. A Labour Court Hearing took place on 25th April, 2012. The following is the Labour Court's Decision:
DETERMINATION:
This is an appeal by EXPD8 (hereafter the Respondent) against a decision of a Rights Commissioner in a claim by Ms kathleen Mulraney (hereafter the Claimant) made under the Organisation of Working Time Act 1997.
Preliminary issue
The Respondent raised a preliminary issue concerning the identity of the Claimant's employer. It was submitted on behalf of EXPD8 Limited that it did not employ the Claimant but that she was at all times employed by an associated company; Supermare Limited. A copy of the Claimant's contract of employment was produced which showed that she entered into the contract with EXPD8, the Respondent herein.
Section 2 of the Act defines an employer, in relation to an employee, as the person with whom the employee entered into, or for whom the employee worked, under a contract of employment. It is clear that the Claimant entered into a contract of employment with EXPD8 Limited. Consequently that entity was here employer for the purposes of the Act and it is the appropriated respondent in this case.
Facts
The facts giving rise to the dispute are as follows: -
The Claimant worked for the Respondent from 2008 until her employment was terminated by reason of redundancy on 8th May 2011. Notice of termination was given to the Claimant on 20th April 2011. At that time she had outstanding holidays due to her from the leave year ending on 31st March 2011 and for the month of April 2011. In the letter giving notice of dismissal a Director of the Respondent informed the Claimant that her outstanding annual leave would be given to cover, in part, her notice period. The economic value of the outstanding holidays was €979.64.
Position of the parties
The Respondent contends that it was entitled under the Act to decide when the Claimant would take her holidays and that it exercised its discretion to direct that the holidays be taken concurrent with the period of notice to which the Claimant was entitled under the Minimum Notice and Terms of Employment Act 1973, as amended. The Claimant contends that the Respondent was not entitled to effectively combine her entitlement to notice and her holiday pay.
The Rights Commissioner found for the Claimant and awarded her compensation in the amount of €3,500. Without prejudice to its contention that it did not contravene the Act the Respondent submitted that the quantum of compensation awarded was excessive and was based on a misunderstanding by the Rights Commissioner of the Clamant's earnings.
Conclusion
Section 20 of the Act entitles an employer to determine the times at which annual leave is to be given subject to three conditions specified at subsection (1) of that section. These conditions are, in effect, (a) that the employer takes into account the opportunities available to the employee to reconcile work and any family responsibilities and the opportunities for rest and recreation available to the employee, (b) the employer having consulted the employee at least one month before the leave is to commence and (c) the leave been granted within the leave year to which it relates, or with the employee's consent, six months thereafter. It is clear from a plain reading of s.20 that these are conditions precedent to the exercise by an employer of the entitlement to determine the times at which annual leave is to be taken.
It is accepted by the Respondent that none of these conditions were fulfilled. In these circumstances the Respondent was not entitled to determine that the Claimant take her holidays at the time in issue. Section 23 of the Act provides that on cesser of employment an employee is entitled to be paid the economic value of outstanding holidays. The payments made to the Claimant on the termination of her employment were, in reality, in lieu of notice due under the Act of 1973 as amended and were not in discharge of her entitlement under s. 23 of the Act. It is thus clear that the Respondent contravened s. 23 in relation to the Claimant and that her complaint is well founded.
Determination
Having regard to the economic value of the outstanding holidays the Court directs the Respondent to pay to the Claimant €979.64 being the amount due to her under s.23 of the Act and to pay compensation in the amount of €420.34, making a total award of €1,400. The compensatory element of this award does not relate to remuneration.
The decision of the Rights Commissioner is varied accordingly.
Signed on behalf of the Labour Court
Kevin Duffy
14th May, 2012______________________
JMcCChairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.