FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : PRESENTATION BINDING LTD - AND - MR KEN HEALY DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner's Decision r-125837-wt-12 JOC.
BACKGROUND:
2. The Employer appealed the Rights Commissioner's Decision to the Labour Court on 27th February, 2013. A Labour Court Hearing took place on 31st October, 2013. The following is the Labour Court's Determination:
DETERMINATION:
This is an appeal by Presentation Binding Ltd (the Respondent) against Rights Commissioner's Decision numberr-125837-wt-12 JOCmade under Section 27 of the Organisation of Working Time Act 1997 (the Act) in which he found that a complaint made by Mr Ken Healy, ( the Complainant), under Section 19 of the Act was well founded.
The Rights Commissioner awarded the Complainant compensation in the sum of €600.
The matter came before the Court on Thursday 31st October 2013. Both parties attended the hearing and made extensive written and oral submissions to the Court.
Position of the Parties
Complainant's Position
The Complainant submits that he worked for the Respondent for in excess of 14 years. He submits that he resigned from his employment on the 12 July 2012. He submits that at the time of his resignation he had accrued an entitlement to 10 days annual leave. He submits that he had taken 4 days annual leave in the relevant leave year. He submits that he was entitled on the termination of his employment to cesser pay in respect of the remaining 6 days leave to which he had accrued an entitlement. He submits that he was not paid for this outstanding leave. He asserts that he is owed 6 day’s pay by his employer.
Respondents Position
The Respondent submits that the Complainant terminated his employment on the 29th June 2012. It submits that the Complainant was paid all monies due to him at that time including payment for 10 days accrued holiday entitlement. It submits the Complainant had taken 4 days annual leave and was accordingly entitled to 6 days cesser pay in respect of outstanding accrued annual leave. It submits that it overpaid the complainant. It argues that the complaint before the Court is not well founded.
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):
- (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),
Section 20 states: -
- (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) be paid to the employee in advance of his or her taking the leave,
(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
The parties are agreed that the contractual leave year was aligned with the calendar year. The Claimant acknowledged that he had received his annual leave entitlement in respect of annual leave year 2011.
The parties disagreed on the date on which the Complainant ceased working for the Company. The Company argued that his employment ended on the 29th June 2012. The Complainant submitted that it ended on various dates between the 29th June and the 12th July 2012.
The Court finds that the P45 issued to the Complainant is dated the 29th June. The Complainant did not challenge that date at that time. On that basis and on the basis of the submissions made by both sides, the Court prefers the Respondent's evidence on this point and determines that the Complainant's employment terminated on the 29th June 2012.
The Respondent paid its employees by credit transfer on the last Friday of each month. June 29th 2012 fell on a Friday. The Respondent paid the Complainant €1200 by credit transfer on that day. It submits that this amount included payment in respect of 10 days holidays to which the Complainant had accrued an entitlement at that time. It submits that it, in effect, overpaid the Complainant by 4 days. It submits that it had accordingly discharged it obligations to the Complainant under the Act.
The Respondent argues that he had not given the employer notice of his intention to resign his employment at that time. He submits that the sum he was paid on that day represented his outstanding wages for time worked, his expenses, his outstanding bonus entitlements for that month and two weeks sick pay. He argues that the reason the value of his outstanding holidays and the amount he was paid on that day do not tally is because he was paid 10 days sick pay and not 6 days holidays as claimed by the Respondent. He argues that he continues to retain an entitlement to payment for his outstanding holidays.
The Respondent disputes this arguing that it does not pay sick pay and never has done in respect of any of its employees.
Having considered the submissions of both parties the Court prefers the evidence of the Complainant on this point. The figures presented by the employer are consistent with the evidence of the Complainant. He states that his daily hours of work and his working week was being varied by the employer on a daily basis. He states that he did not know from day to day what hours or days he was required to work or what work he was required to perform for the Respondent. He acknowledges that the business was going through a difficult time but maintains that the employer was engaged in a campaign to force him to resign. He submits that he was ill as a result and that he was submitting doctors certificates to verify that fact. He submits that the Respondent paid him sick pay on that occasion and had done so in the past when he was ill.
The Respondent produced to the Court a copy of the Complainant’s final pay slip. It contained no reference to payments in respect of outstanding holidays due to the Complainant.
On this basis the Court finds the Respondents evidence on this point unreliable and inconsistent. The Court finds the evidence of the Complainant consistent with the details set out on the pay slip. Accordingly the Court prefers the evidence of the Complainant on this point and finds that the Respondent did not discharge its liability to pay the Complainant the monies due to him in respect of the 6 days annual leave to which he had accrued entitlements.
Determination
The Court finds that the Complaint is well founded.
The Court orders the Respondent to pay the Complainant compensation in the sum of €600 for the infringement of section 19 of the Act, such sum to include the amount due to the Complainant in respect of six days annual leave due to him.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
15th November, 2013______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.