FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 28 (1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : ASF RECRUITMENT LIMITED (REPRESENTED BY ESA CONSULTANTS) - AND - AIVARS MIZS - MISINS DIVISION : Chairman: Mr Hayes Employer Member: Mr Marie Worker Member: Mr Shanahan |
1. Appeal of an Adjudication Officer's Decision No r-159248-wt-15.
BACKGROUND:
2. An Adjudication Officer hearing took place on 5 November 2015, and a Decision was issued on 26 February 2016. The Employer appealed the Decision of the Adjudication Officer to the Labour Court on 15 March 2016, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 22 June 2016.
DETERMINATION:
- 3.1.The Respondent Company operates an employment agency and supplies staff to its clients as and when required. The Complainant commenced working for the respondent on 22 July 2013. His employment ended on 10 July 2015.
3.2.In the 2013 holiday year he worked a total of 266.7 hours. He received no paid holidays that year. He submits that under the Organisation of Working Time Act he has an entitlement to 21 hours holidays for which he is owed €181.65. He further submits that he was entitled to payment for four public holidays that year. He claims that he received no payment for any of those days. He claims that he is owed the sum of €278.80 by the Respondent.
3.3.In 2014 he claims that he worked 788.3 hours which gives him an entitlement to 63 hours holidays or payment in lieu. He claims as he received no holidays during that leave year he is entitled to €544.95 holiday pay.
3.4.He further claims that he was entitled to be paid for 8 public holidays that year. He claims he is owed €553.60 in respect of those days.
3.5.He claims that he worked 102.25 hours for the Respondent in 2015. He received no holiday pay in respect of those hours. He claims that he is owed €69.20 in respect of his statutory holiday entitlement in respect of those worked hours.
3.6.Finally he claims that he has an accrued entitlement to payment for two Public Holidays in 2015 for which he should be paid €138.40
3.7.He complained to the Rights Commissioner under section 27 of the Act. The Rights Commissioner decided that the relevant statutory reference period ran from 2 March 2015 until 1 September 2015. He further decided that the complaint under both section 21 and 23 of the Act were well founded and awarded the complainant compensation in the sum of €3,000.
3.8.The Respondent appealed against that decision to this Court.
4.Respondent’s Appeal
- 4.1.When the appeal came before the Court on 22 June 2016 the Respondent conceded that it had infringed sections 21 and 23 of the Act in the relevant statutory reference period.
4.2.It submitted that the Complainant had advanced no grounds for extending the time for bringing his complaint. It submitted that the Court must confine itself to infringements of the Act that occurred in the reference period and cannot go beyond that time.
4.3.It submitted that the Rights Commissioner was correct in deciding that it had infringed the Act but has awarded excessive compensation in circumstances where the Respondent was a small operation that had limited resources, admitted its error and co-operated otherwise with the WRC to resolve the matter.
4.4.It asked the Court to confine the award under the Act to the actual sums due to the Complainant in respect of his entitlement under the Act.
5.Complainant’s Case
- 5.1.The Complainant sought compensation for the holiday pay he was due and no more.
6.Findings of the Court
- 6.1.The Court finds that the Respondent infringed both sections 21 and 23 of the Act. The Court further finds that no application for an extension of time was made and accordingly must confine itself to the relevant statutory period. In that regard it upholds the decision of the Rights Commissioner.
6.2.However the Court finds that the level of compensation awarded by the Rights Commissioner is excessive in all the circumstances of this case. Accordingly the Court varies the award made by the Rights Commissioner from €3,000 to €1,700.
7.Determination
7.1.The complaint under sections 21 and 23 of the Act are well founded. The Court orders the Respondent to pay the Complainant compensation in the sum of €1,700. The decision of the Rights Commissioner is varied accordingly.
7.2.The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
30 June 2016______________________
MNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.