FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : FANNIN LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - MAREK MARCINIUK (REPRESENTED BY POLISH CONSULTANCY ENTERPRISE) DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Ms Tanham |
1. Appealing against a Rights Commissioner's Decision r-122023-wt-12/JT.
BACKGROUND:
2. The Claimant was employed by Fannin Ltd as a Driver based at the Orb Medical facility in Rathcoole, Co. Dublin and he claims that he did not get two weeks' unbroken annual leave in 2011. He further claims that as a result of his initial claim he was subjected to penalisation which resulted in his dismissal. The Company rejects both the claims.
The Employee appealed the Rights Commissioner’s Decision to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997 on the 20th December 2012. The Court heard the appeal on the 4th April, 2013, the earliest date suitable to the parties.
WORKER'S ARGUMENTS:
3. 1. The Worker refused to work overtime hours that were not correctly notified to him and was penalised when the Employer invoked a disciplinary process against him which ultimately led to his dismissal.
2. Section 19 (3) of the Act states that an Employee must be given two weeks of unbroken annual leave and this did not occur during the 2011 leave year.
COMPANY'S ARGUMENTS:
4. 1. The Claimant relies on there being a breach of Section 17, however, Labour Court Determination Number DWT12114 found that no such breach took place. It is clear therefore that'nounlawful act'occurred for which he could have been penalised for.
2. The Company practice in respect of holidays is that an employee requests annual leave. Therefore, if the Claimant went the whole year without two weeks' annual leave being taken, this was in effect by 'agreement between the employee and employer'. He was always in a position to 'bring forward' his annual leave for a period of six months into the following year.
DETERMINATION:
The facts of the case are not in dispute. Mr Marek Marciniuk (the Complainant) worked for Fannin Limited (the Respondent) delivering medical equipment to Company clients from September 2009 until he was dismissed in December 2011. The Complainant argues that the Respondent infringedSection 19(3) of the Organisation of Working Time Act 1997(the Act) when it failed to include an unbroken period of two weeks' leave in the 2011 annual leave year. He further argues that he was penalised contrary to the Section 26(1) of the Act for making a complaint under the Act.
The Respondent submits that the Complainant was granted the leave he sought in the annual leave year and accordingly entered into an agreement, within the meaning of Section 19(2) of the Act, with his employer regarding the timing and duration of his annual leave.
Findings of the Court
Section 19(3) of the Act states:-
"(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." In this case the Complainant confirmed to the Court that he received the annual leave he requested from the Respondent. He also confirmed that he was under no pressure to take less than two weeks' unbroken leave when he made his application. He further confirmed that he had been granted two weeks' unbroken leave in each of the years in which he worked for the Respondent prior to 2011.
Accordingly, the Court finds that the Complainant and the Respondent freely entered into an agreement regarding the timing and duration of his annual leave in a manner consistent with the provisions of Section 19(3) of the Act.
Section 26
Section 26(1) of the Act states:-
26 (1)An employer shall not penalise an employeefor havingin good faith opposed by lawful means an act which is unlawful underthisAct[or theActivities of Doctorsin Training Regulations ].
(2)if a penalisation of an employee, in contravention ofsubsection(1),constitutes a dismissal of the employee within the meaning oftheUnfair Dismissals Acts1977to
[2007},relief may not be granted to the employeein respectof that penalisation both under thisPartand underthose Acts
The Complainant submits that he was dismissed from his employment because he, in good faith, made a complaint under the Act.
The Complainant offered no evidence to the Court in support of this position.Furthermore this Court in DTW12113 found against the Complainant under Section 26 of the Act in relation to
disciplinary action taken by the Respondent.The Court determined that the disciplinary procedureinvoked against the Complainant was wholly related to the performance of his duties and were not connected to complaints he had made under this Act.
The Complainant offered no evidence to the Courtin support of his contention that the decision to dismiss him from his employment consequent upon the outcome of that disciplinary process was itself influenced by or connected with a complaint he made under this Act.
Determination
The Complaint under Section19(3) of the Act is not well-founded. The Decision of the Rights Commissioneris affirmed.
The Complaintunder Section 26(1) of the Act is not well-founded. The Decision of the Rights Commissioner is affirmed.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
24th May, 2013______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.