DWT135

This is an appeal under Section 28(1) of the Organisation of Working Time Act 1997 (the Act) by Mr Paul Kelly (the Complainant) against Rights Commissioner's Decision Number r-111234-wt-11/JT in which he held that Michael McNally trading as The Calendar Company (the Respondent) had not infringed his rights under Section 19 of the Act.

Background

The Complainant worked for the Respondent as an Avertising Sales Executive from March 2009 until his employment terminated in May 2011. He states that he did not receive his full statutory annual leave entitlement of 20 days in either 2009 or 2010. He further states that he did not receive his statutory annual leave entitlement of 6 days due to him at the time his employment finished in 2011.

In August 2011 he made a complaint to the Rights Commissioner pursuant to Section 27 of the Act. In it he stated that the Respondent infringed the provisions of Section 19 of the Act in respect of his entitlement to Annual Leave in the years 2009, 2010 and 2011, respectively. The case came on for hearing before the Court on the 31^stOctober 2012. The Complainant attended the hearing and made submissions to the Court. The Respondent neither attended the hearing nor made any submissions to the Court.

Position of the Complainant

The Complainant stated that he worked for the Respondent as an Advertising Sales Representative and was paid wages of €500 by cheque each week. He stated that he did not receive his full holiday entitlement in any of the years during which he was employed. He stated that documents supplied to the Rights Commissioner by the Respondent purporting to show that he did receive his full holiday entitlement are not accurate. He identified three occasions upon which the records were in error and submitted supporting documentation in support of his position. He states that the records submitted are also incorrect in respect of other dates upon which he was purportedly on leave but he was not in a position to submit supporting documentation in respect of those dates. On this basis he states that the records cannot be relied upon and are not an accurate record of the annual leave that he was allowed in those years. He asks the Court to uphold his complaint.

Position of the Respondent

The Respondent did not attend nor make any submissions to the Court.

Findings of the Court

Section 19 of the Act provides

• (1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an Employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—
  • • (a) 4workingweeks 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 aworkingweek 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 4workingweeks):

    
    
    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.
  
  (2) A day which would be regarded as a day of annual leave shall, if the Employee concerned is ill on that day and furnishes to his or her Employer a certificate of a registered medical practitioner in respect of his or her illness, not be regarded, for the purposes of this Act , as a day of annual leave.

  (3) The annual leave of an Employee who works 8 or more months in a leave year shall, subject to the provisions of any employment regulation order, registered employment agreement, collective agreement or any agreement between the Employee and his or her Employer, include an unbroken period of 2 weeks.

  (4) Notwithstanding Subsection (2) or any other provision of this Act but without prejudice to the Employee's entitlements under Subsection (1) , the reference in Subsection (3) to an unbroken period of 2 weeks includes a reference to such a period that includes one or more public holidays or days on which the Employee concerned is ill.

  (5) An Employee shall, for the purposes of Subsection (1) , be regarded as having worked on a day of annual leave the hours he or she would have worked on that day had it not been a day of annual leave.

  (6) References in this Section to aworkingweek shall be construed as references to the number of days that the Employee concerned usually works in a week.

• (1) An Employer shall keep, at the premises or place where his or her Employee works or, if the Employee works at two or more premises or places, the premises or place from which the activities that the Employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this Act [and, where applicable, the Activities of Doctors in Training Regulations] are being complied with in relation to the Employee and those records shall be retained by the Employer for at least 3 years from the date of their making.

Subsection (4) provides

• (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 [or the Activities of Doctors in Training Regulations] 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.

As the Respondent did not attend the Hearing nor make any submissions the Court finds that it has failed to discharge the statutory burden placed upon it.

Section 19 of the Act provides that an employee who works 1,365 hours in the relevant leave year is entitled to 4 weeks' paid annual leave. The Court accepts that the Complainant did not receive his full entitlement in respect of the leave year commencing April 2010. The Court further accepts the Complainant’s statement that he did not receive his statutory leave entitlement in respect of the annual leave year commencing April 2011. The Court notes, however, that the Complainant did receive some annual leave in each of those years.

Taking all matters into account the Court determines that the Complainant’s statutory entitlement to annual leave in accordance with the provisions of Section 19 of the Act was infringed by the Respondent in the leave year commencing April 2010 and the leave year commencing April 2011. The Court awards the Complainant compensation in the sum of €2,250.00 in respect of both the cesser (holiday) pay due to him in respect of the outstanding statutory leave entitlement due on the termination of his employment and as compensation for the infringement of his entitlements under the Act.

Determination

The appeal is upheld. The Court awards the Complainant compensation in the sum of €2,250.00. The Decision of the Rights Commissioner is set aside.

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
15th February, 2013______________________
JFDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.