FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : EAMONN MCELWAIN T/A MCELWAIN SCAFFOLDING (MCES SCAFFOLDING SERVICES) - AND - ALEKSEJ ISAJANC DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr McCarthy |
1. Appeal of Rights Commissioner's Decision r-149789-wt-14/RG.
BACKGROUND:
2. The Employer appealed the Rights Commissioner's Decision to the Labour Court on 24th August, 2015. A Labour Court Hearing took place on 28th October, 2015. The following is the Labour Court's Determination:
DETERMINATION:
The appeal before the Court was made by Eamonn McElwain t/a McElwain Scaffolding (MCES Scaffolding Services) against a Decision of the Rights Commissioner which found in favour of the complaint made by Mr Aleksej Isajanc in which he alleged that his employer had breached Section 23 of the Organisation of Working Time Act 1997 (the Act) when he was not paid compensation for his outstanding annual leave on the cesser of his employment. The Rights Commissioner held that the complaint was well-founded and awarded Mr Isajanc the sum of €2,240.40 which figure included a sum of €1,240.40 compensation for the financial loss he incurred by way of unpaid holiday entitlement and the balance by way of compensation for the breach of the Act.
For ease of reference the parties are given the same designation as they had at first instance. Hence Eamonn McElwain t/a McElwain Scaffolding (MCES Scaffolding Services) will be referred to as “the Respondent” and Mr Aleksej Isajanc will be referred to as “the Complainant”.
The Complainant was employed by the Respondent from 7thOctober 2013 until
20thJune 2014. He contended that on the termination of his employment with the Respondent he had an accumulated outstanding entitlement of 21 hours’ annual leave. He claims that the Respondent failed to pay him compensation for the loss of his holiday entitlements contrary to Section 23 of the Act. The complaint was referred to the Rights Commissioner on 20thOctober 2014.
The Respondent produced payslips and details of all annual leave paid to the Complainant during the period of his employment and did not dispute that the Complainant was entitled to 21 hours’ annual leave on the cesser of his employment. The Respondent told the Court that on 5thSeptember 2014 it issued a payslip and a supplementary P45 for these outstanding 21 hours which came to a total of €350.49. However, the Respondent accepted that due to an error this payment was not paid into the Complainant’s bank account as intended.
Section 23 of the Act makes provisions for the payment of compensation to an employee where annual leave is outstanding at the cesser of his/her employment and, where this occurs during the first half of that annual leave year, he/she is entitled to any outstanding annual leave in respect of that annual leave year, the previous leave year or both those years.
Having considered the submissions made by both parties the Court is satisfied that there is an outstanding amount due to the Complainant and therefore the Court determines that the Respondent should pay the Complainant the sum of €350.49 within six weeks from the date of this Determination.
In acknowledging that the Respondent fully accepted that there was an outstanding sum of €350.49 due to the Complainant the Court therefore upholds the Respondent’s appeal and varies the Rights Commissioner's
Decision accordingly.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
30th October, 2015______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.