DWT1457

This is an appeal by Mobile Phone Repair Specialist (Enniscorthy) Limited against the Decision of a Rights Commissioner in a claim against it by Monika Smulska under the Organisation of Working Time Act 1997 (the Act).

In this Determination the parties are referred to as they were at first instance. Hence Ms Smulska is referred to as the Claimant and Mobile Phone Repair Specialist (Enniscorthy) Limited is referred to as the Respondent.

Background

The Claimant was employed by the Respondent as an Office Assistant from 5^thJune 2012 until 3^rdMay 2013, when her employment terminated. The within complaint relates to the annual leave afforded to the Claimant during the currency of her employment with the Respondent. Over the period in question the Claimant accrued an entitlement to 18 days annual leave in accordance with s.19 of the Act. The Claimant claims that she only received a total of 5 days annual leave, leaving a balance outstanding of 12 days. The Respondent contends that the Claimant received 8.5 days leave in 2012 and the remaining 10 days in 2013.

Records

Section 25 of the Act provides: -

• 25—(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 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.

  (2) The Minister may by regulations exempt from the application of subsection (1) any specified class or classes of employer and regulations under this subsection may provide that any such exemption shall not have effect save to the extent that specified conditions are complied with.

  (3) An employer who, without reasonable cause, fails to comply with subsection (1) shall be guilty of an offence.

  (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 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.

Conclusions of the Court

The Claimant told the Court that she received 5 days’ leave in 2012. She said that she applied for a further 10 days in 2013 but that this request was refused. Mr Thomas Fitzpartick of the Respondent told the Court that the Claimant received 8.5 days leave in 2012 and 10 days in 2013. However this evidence was based on his recollection of what occurred. His recollection was subsequently recorded in a computer printout of the Claimant’s working time. There were no contemporaneous records of the Claimant having obtained the leave ascribed to her.

The Claimant gave cogent evidence to the Court concerning the holidays that she was afforded during the currency of her employment. The Court found the evidence proffered on behalf of the Respondent less reliable. In circumstances in which the Respondent carries the burden of proving compliance with the Act the Court has come to the view that the Respondent has failed to discharge that burden. Accordingly the Court accepts the Claimant’s account of the leave that she obtained.

Determination

The Court finds that the Respondent did contravene s.19 of the Act in relation to the Claimant. She was deprived of 12 days annual leave to which she was entitled and she was also deprived on her statutory entitlement of two weeks continuous leave in accordance with s.20 of the Act. As this Court has consistently pointed out, the entitlement to annual leave is an important health and safety imperative derived from the Law of the European Union. Any contravention of that right deprives an employee of a fundamental social right in Union law.

The Court finds that the economic value of the leave withheld from the Claimant is €1046.40 (€87 per day x 12 days). The Court awards the Claimant compensation in that amount. The Court is satisfied that in addition to that amount the Claimant is entitled to a general award of compensation for the loss of her entitlement to actually take leave from work. This entitlement, as already observed, is a health and safety imperative, the contravention of which must be viewed seriously. Having regard to this consideration the Court award the Claimant addition compensation in the amount of €1,000.

The total award made to the Claimant is in the amount of €2,046.40

The Decision of the Rights Commissioner is varied accordingly.