FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : WICKLOW RECREATIONAL SERVICES LTD (REPRESENTED BY LAW PLUS SOLICITORS) - AND - MAREK MARCINIUK (REPRESENTED BY BLAZEJ NOWAK) DIVISION : Chairman: Mr Haugh Employer Member: Ms Doyle Worker Member: Mr Shanahan |
1. An appeal against a Rights Commissioner's Decision no: r-149679-wt-14/EH.
BACKGROUND:
2. The Worker appealed the Rights Commissioner's Decision to the Labour Court on 24th August 2015 in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 27th October 2015. The following is the Determination of the Court.
DETERMINATION:
This is Mr Marciniuk’s (“the Complainant”) appeal from a decision of a Rights Commissioner (r-149679-wt-14/EH) dated 11 August 2014. This appeal was conjoined with an appeal under the National Minimum Wage Act 2000 (MWA/15/13). Both appeals were heard together on 27 October 2015. The Court received written and verbal submissions from the Parties’ representatives in relation to both appeals. The hearing of the appeal under the National Minimum Wage Act 2000 concluded and the Court’s determination issued shortly thereafter in the normal way.
On the conclusion of the hearing of the within appeal under the Organisation of Working Time Act 1997 (“the Act”) on 27 October 2015, the Court acceded to an application from the Claimant’s representative, and with the consent of the Respondent’s representative, to put a stay on issuing its determination therein pending notification to the Court of the outcome of a separate appeal (against Labour Court determination DWT1530) then pending before the High Court. The Court subsequently received additional written submissions from both parties to the effect that the aforementioned judgment of the High Court had no bearing on the facts of the within appeal.
The Respondent operates a leisure centre located in Co. Wicklow which trades under the name ‘Shoreline’. The Complainant was employed by the Respondent between 1 December 2008 and 10 July 2014 as a part-time leisure attendant. He worked under a contract that provided the Respondent could determine the Complainant’s working hours from time to time. The Complainant performed a range of other duties including the provision of swimming lessons.
Issues under Appeal
Sunday Premium: The Complainant submitted that he had worked on a number of Sundays in the period 10 June 2014 to 10 July 2014 but received no additional premium in respect of any of the Sundays worked. The Respondent submitted that the Complainant had in fact been paid for any and all Sunday premiums due to him through to the cessation of his employment on 10 July 2014.
The issue of payment of a Sunday premium has been raised by the Complainant in a number of previous proceedings before this Court. The Court found for the Complainant in regard to this issue in DWT14123 (delivered on 29 December 2014) and set the Sunday premium at 25% of normal pay.
The Court accepts the evidence proffered on the Respondent’s behalf that the aforementioned premium rate was applied in respect of the Sundays on which the Complainant worked in the period which is the subject of this element of his complaint in the within proceedings. This claim, therefore, fails.
Annual Leave: The Complainant submitted that he received his annual leave entitlement for the annual leave year 1 April 2013 to 31 March 2014 but that the payments he received in respect of the annual leave he availed himself of did not include a Sunday premium element. The Complainant submitted a similar complaint in respect of the period 1 August 2014 to 10 July 2014.
The Respondent submitted that it pays annual leave at the rate of 9.5% of hours worked as against 8% which is the statutory minimum rate for part-time workers. It further submitted that the Complainant had been paid in full (at the rate of 9.5%) for his annual leave entitlement for the relevant period i.e. at the time the leave was taken and also in respect of outstanding annual leave due to him on the date of termination of his employment.
The Court accepts the evidence proffered on the Respondent’s behalf in support of its submission that the Complainant received payment in respect of his annual leave entitlements that was calculated at a rate that exceed the statutory minimum rate . This claim, therefore, fails.
Conclusion
The Court finds that the Complainant failed to substantiate any of the claims referred to the Court in the within appeal. The findings and the decision of the Rights Commissioner, therefore, stand.
The Court so determines.
Signed on behalf of the Labour Court
Alan Haugh
CR______________________
27th June, 2016.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.