FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : BALLINALARD TRANSPORT LTD - AND - MR DAVID FENLON DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. Appeal Of Rights Commissioner's Decision 095171-wt-10/GC.
BACKGROUND:
2. The Company appealed the Rights Commissioner's Decision to the Labour Court. A Labour Court hearing took place on the 6th March, 2013. The following is the Labour Court's decision.
DETERMINATION:
This is an appeal, under Section 28(1) of the Organisation of Working Time Act 1997 (“the Act”), by Ballinalard Transport Ltd (“the Respondent”) against Rights Commissioner Decision No. 095171-WT-10/GC issued on the 31stAugust 2011. The appeal was lodged with the Labour Court on 10thOctober 2011.
The Complainant worked for the Respondent as a driver between 31stJanuary 2009 and the 23rdDecember 2009. He was paid a basic rate of €100 per day. He complains that, contrary to the provisions of Section 14 of the Act he received no additional payments for overtime work or for working on Sunday. He further complained that contrary to Section 19 of the Act he was not allowed his full annual leave entitlement in the relevant leave years. He further complained that contrary to the provisions of Sections 20 and 23 of the Act he was not paid cesser pay in respect of the outstanding annual leave days on the termination of his employment. Finally he complained that, contrary to Section 21 and 23 of the Act he was not paid any additional pay or allowed any additional leave in respect of any of the Public Holidays that fell during his employment.
Section 14
Complainant’s Position
The Complainant submits that he received no additional payment for working on Sunday. He submitted details to the Court of the number of Sunday’s on which he worked over the course of his entire employment.
Respondent’s Position
The Respondent submits that the Complainant was paid a rate of pay that included a premium in respect of Sunday work. It relies on Section F contained in the Statement of Main Terms of Employment that was issued to the Complainant on commencement of his employment. Section F states 'The Company operates around the clock seven days per week. You will be required to work up to 768 hours in any 16 week period.'
The Respondent argues that this amounts to a contractual term requiring the complainant to work on Sunday for the consolidated rate of pay set out in the Statement.
Findings
The Law
Section 14 of the Act states:
- (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 paidtimeoff from work as is reasonable having regard to all the circumstances, or
(d) by a combination of two or more of the means referred to in the preceding paragraphs.
(2) Subsection (3) applies to an employee where the value or the minimum value of the compensation to be provided to him or her in respect of his or her being required to work on a Sunday is not specified by a collective agreement.
(3) For the purposes of proceedings under Part IV before a rights commissioner or the Labour Court in relation to a complaint that this section has not been complied with in relation to an employee to whom this subsection applies (“the first-mentioned employee”), the value or the minimum value of the compensation that a collective agreement for the time being specifies shall be provided to a comparable employee in respect of his or her being required to work on a Sunday shall be regarded as the value of compensation to be provided under this section to the first-mentioned employee that is reasonable having regard to all the circumstances:
Provided that if each of 2 or more collective agreements for thetimebeing specifies the value or the minimum value of the compensation to be provided to a comparable employee to whom the agreement relates in respect of his or her being required to work on a Sunday and the said values or minimum values are not the same whichever of the said values or minimum values is the less shall be regarded, for the purposes aforesaid, as the value of compensation to be provided under this section to the first-mentioned employee that is reasonable having regard to all the circumstances.
(4) Unless the fact of such a value being so specified has come to the notice of the rights commissioner or the Labour Court, as the case may be, it shall be for the person who alleges in proceedings referred to in subsection (3) that a value of compensation of the kind referred to in that subsection is specified by a collective agreement mentioned in that subsection to show that, in fact, such a value is so specified.
(5) In subsection (3) “comparable employee” means an employee who is employed to do, under similar circumstances, identical or similar work in the industry or sector of employment concerned to that which the first-mentioned employee in subsection (3) is employed to do.
(6) References in this section to a value or minimum value of compensation that is specified by a collective agreement shall be construed as including references to a value or minimum value of compensation that may be determined in accordance with a formula or procedures specified by the agreement (being a formula or procedures which, in the case of proceedings referred to in subsection (3) before a rights commissioner or the Labour Court, can be readily applied or followed by the rights commissioner or the Labour Court for the purpose of the proceedings). - (a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or
The question for the Court to decide is whether or not '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.'
An examination of the plain meaning of the words of Section F reveals that the Complainant was required to work on Sunday. However it makes no reference to whether or not this fact has been taken into account in determining the level of his pay. The rate of pay set out within the Statement is a daily rate that is paid irrespective of the number of hours worked or the day of the week on which the Complainant was scheduled to work.
Determination
The Court finds that terms set out in the Statement of Main Terms of Employment are not sufficient to establish as a “fact” that the requirement to work on Sunday has been taken into account in the determination of his pay. The Complainant is entitled to and has not received a premium payment for working on Sunday in the relevant period. The Court, pursuant to Section 27(3) (a) of the Act, determines that the Complaint is well founded. The Court, pursuant to the provisions of Section 27(3) (c) of the Act, orders the Respondent to pay the Complainant compensation in the sum of €2,000.
Section 19
Complainant’s Position
The Complainant argues that he worked a six day week on average and was entitled to four working weeks holidays. He calculates his entitlement at 22 days for the 2009 leave year. He maintains that he received seven (7) paid holidays in 2009 and accordingly had an outstanding entitlement to 15 days leave when his employment ended on 23rdDecember 2009. He maintains that he did not receive payment for his outstanding annual leave entitlement on the cessation of his employment.
Respondent’s Position
The Respondent does not dispute the Complainant’s assertion that he was not paid his entire holiday pay in respect of the leave year 2009. However it maintains that the reason for this is that the Complainant agreed to offset two week’s holiday pay against monies owed to the company arising out of accidental damage he caused to one of its vehicles while under his control.
Findings of the Court
The Law
Section 19 of the Act states
(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):
(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 a working week shall be construed as references to the number of days that the employee concerned usually works in a week.- (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),
(1) The times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements and subject—- (a) to the employer taking into account—
- (i) the need for the employee to reconcile work and any family responsibilities,
(ii) the opportunities for rest and recreation available to the employee,
(c) to the leave being granted within the leave year to which it relates or, with the consent of the employee, within the 6 months thereafter. - (i) the need for the employee to reconcile work and any family responsibilities,
(2) The pay in respect of an employee's annual leave shall—- (a) be paid to the employee in advance of his or her taking the leave,
(b) be at the normal weekly rate or, as the case may be, at a rate which is proportionate to the normal weekly rate, and
(c) in a case in which board or lodging or, as the case may be, both board and lodging constitute part of the employee's remuneration, include compensation, calculated at the prescribed rate, for any such board or lodging as will not be received by the employee whilst on annual leave.
(3) Nothing in this section shall prevent an employer and employee from entering into arrangements that are more favourable to the employee with regard to the times of, and the pay in respect of, his or her annual leave.
(4) In this section “normal weekly rate” means the normal weekly rate of the employee concerned's pay determined in accordance with regulations made by the Minister for the purposes of this section .- (a) to the employer taking into account—
Section 23 states
- (1) Where—
- (a) an employee ceases to be employed, and
(b) the whole or any portion of the annual leave in respect of the current leave year or, in case the cesser of employment occurs during the first half of that year, in respect of that year, the previous leave year or both those years, remains to be granted to the employee,
- (a) an employee ceases to be employed, and
Findings
Section 19 of the Act provides that an employee who works a minimum of 1365 hours in a leave year is entitled to 20 days annual leave. It is not disputed that the Complainant worked 1365 hours in the relevant leave year.
The Complainant submits that he received 7 days' leave in the relevant leave year. Accordingly the Complainant was due a further 13 days' leave on the termination of his employment.
It is common case that the complainant singed a letter on the 19thNovember offsetting €700 holiday pay against an outstanding debt owed to the Company. As the Complainant was paid €100 per day it would appear that this amount accounted for seven days leave due to him. Accordingly there is a balance of 6 days leave to which the Complainant was entitled that is not accounted for in the calculations presented to the Court by the Respondent.
An employee’s entitlement to Annual Leave is a fundamental health and safety provision of European Union law that is designed to protect the worker and the public from fatigue and its consequences. It is not an entitlement that can be offset against a debt owed to a Company. Section 20(2) of the Act states payment for annual leave in advance is mandatory:
- (2) The pay in respect of an employee's annual leave shall—
- (a) be paid to the employee in advance of his or her taking the leave,
Section 23 of the Act contains a similar mandatory requirement to include outstanding holiday pay in cesser pay on the termination of employment:
- (1) the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave.
The operative word in both of those sections of the Act is “shall” which is a mandatory provision that accommodates no compromise.
The Respondent confirmed to the Court that it did not pay the worker the cesser pay outstanding to him on the termination of his employment. Instead it withheld that payment in part settlement of a debt he owed the Respondent arising out of damage he caused to a company vehicle. As such an offsetting is not permitted under the Act the Court concludes that holiday cesser pay remains outstanding in this case.
Determination
The Court, pursuant to Section 27(3) (a) of the Act, determines that the Complaint is well founded. The Court, pursuant to the provisions of Section 27(3) (c) of the Act, orders the Respondent to pay the Complainant compensation in the sum of €2,000.
Sections 21 to 23
The Complainant submits that he worked on the October Public Holiday in 2009 and was not granted any of the compensatory arrangements set out in the Act for so working. The Respondent admits that the Complainant was not paid his entitlement in respect of the October Public Holiday.
Section 23(2) of the Act states
- (2) Where—
- (a) an employee ceases to be employed during the week ending on the day before a public holiday, and
(b) the employee has worked for his or her employer during the 4 weeks preceding that week,
- (a) an employee ceases to be employed during the week ending on the day before a public holiday, and
In this case the Complainant’s employment terminated on December 23rd2009. This Court inGazboro Ltd v Building and Allied Trades' UnionDWT 16/1999 determined that a week, for the purposes of this section, consists of seven consecutive days. As the Complainant had worked in the week ending on the day before the 25thand 26thDecember 2009, both of which are Public Holidays, he is entitled to payment for both of those days pursuant to Section 23(2) of the Act.
Determination
The Court, pursuant to Section 27(3) (a) of the Act, determines that the Complaint is well founded. The Complainant is entitled to payment in respect of the October Public Holiday and in addition to a day’s pay in respect of each of the Public Holiday’s that fell on Christmas Day and St Stephen’s Day 2009. The Court, pursuant to the provisions of Section 27(3) (c) of the Act, orders the Respondent to pay the Complainant compensation in the sum of €2,000.
Signed on behalf of the Labour Court
Brendan Hayes
15th May, 2013______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.