FULL RECOMMENDATION
SECTION 28 (1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : TEAM OBAIR LIMITED - AND - WIKTOR GLOGIEWICZ (REPRESENTED BY BLAZEJ NOWAK) DIVISION : Chairman: Mr Hayes Employer Member: Mr Marie Worker Member: Mr McCarthy |
1. Appeal Of Adjudication Officer Decision Nos: ADJ-00003504 CA-00005163-001/004
BACKGROUND:
2. The employee appealed the decision of the Adjudication Officer to the Labour Court on the 8 June 2017. A Labour Court hearing took place on the 18 July 2017. The following is the Court's Determination:
DETERMINATION:
This is an appeal by Mr Wiktor Glogiewicz (the Appellant) against a decision of the Adjudication Officer ref no ADJ-00003504 issued on 2 May 2017. The appeal was filed with the Labour Curt on 8 June 2017. The case came on for hearing before the Court on 18 July 2017.
The complaints arise under the Organisation of Working Time Act 1997
Team Obair Limited (the Respondent) operates an employment agency providing staff to various client companies. The Appellant was employed by the Respondent as a warehouse operative commencing on 23 September 2013. His employment terminated on 13 June 2016.
The Complainant brings three complaints under the Act.
Section 19(1) of the Act
Section 19(1) in relevant part states
19.—(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) 4 working weeks 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),
The Complainant submits that his statutory leave year ran from 1 April 2015 until 31 March 2016. He submitted a complaint to the Workplace Relations Commission to the effect that he had not been paid for annual leave that fell in that leave year. The case came before the adjudication officer in January 2017 at which it was acknowledged that payment in respect of annual leave in the 2015/2016 leave year were outstanding. The adjudication officer awarded compensation in the sum of €805.20.
The Complainant acknowledges receipt of those monies but maintains that he is entitled to compensation for the infringement of S 19(1) above as his statutory entitlements were infringed.
The Respondent submits that all monies due to the Complainant were paid and that the infringement has been rectified.
Findings
The Court finds that the Respondent infringed section 19(1) of the Act. The Court finds that timely payment for annual leave is an important statutory health and safety provision designed to ensure that workers get proper rest during the year to enable them enjoy good health while of working age. To do this they must not be under financial pressure while availing of leave or the value of the leave will be reduced. Accordingly the right is an important one.
The Complainant’s representative did not give the Court any information as to the effect of the delay in payment on the Complainant. Accordingly the Court can give no consideration to such circumstances.
Section 19(3)
Section 19(3) of the Act states
(3) The annual leave of an employee who works 8 or more months in a leave year shall, subject to the provisions of any employment regulation order, registered employment agreement, collective agreement or any agreement between the employee and his or her employer, include an unbroken period of 2 weeks.
The Complainant submits that he did not receive annual leave in accordance with s 19(3).
The Respondent submits that Complainant was paid for all leave in the relevant leave year.
Findings of the Court
The requirements of section 19(3) are clear. Absent an agreement to the contrary an employer must provide an unbroken period of two weeks annual leave to an employee.
It is clear that this did not happen in this case. No mitigating reason for this failure was offered to the Court. Accordingly an important statutory right was infringed.
Section 20
Section 20 of the Act 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,
The Complainant states that he was not, contrary to section 20(2)(a) of the Act, paid in advance of his annual leave.
The Respondent submits that the Complainant was paid for all annual leave to which he was entitled.
Findings of the Court
The Court finds that the Complainant was not paid in advance for his annual leave in the relevant leave year. This is an infringement of the Act for the reasons set out earlier in this decision.
Accordingly the Court finds that the Complainant is entitled to compensation for the infringement of his statutory rights.
Determination
The Complaints under Sections 19 and 20 of the Act are well founded. The Court orders the respondent to pay the Complainant compensation in the sum of€750.00 in total for the three infringements of the Act pertaining to Sections 19(1), 19(3) and 20(2)(a).
Signed on behalf of the Labour Court
Brendan Hayes
JD______________________
15 AUGUST 2017Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Deegan, Court Secretary.