FULL RECOMMENDATION
SECTION 28 (1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : TAPASTREET LIMITED (REPRESENTED BY PETER O' BRIEN, B.L., INSTRUCTED BY PATRICK F O' REILLY & CO, SOLICITORS) - AND - JOSEPH MITCHELL (REPRESENTED BY MASON HAYES & CURRAN, SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr McCarthy |
1. An appeal of an Adjudication Officer's Decision No ADJ-00000462.
BACKGROUND:
2. The Employer appealed the Decision of the Adjudication Officer to the Labour Court on the 12th July 2016 in accordance with Section 28(1) of the Organisation of Working Time Act 1997. A Labour Court hearing took place on the 12th January 2017. The following is the Decision of the Court.
DETERMINATION:
This is an appeal by Tapastreet Limited against the Decision of an Adjudication Officer under the Organisation of Working Time Act 1997 (the Act) where Mr Joseph Mitchell claimed that his former employer had breached the Act when he was not paid his outstanding entitlement to annual leave on the cessor of his employment on 16 October 2015 and he was not provided with public holiday entitlements for Easter Monday and 3rdAugust in 2015. The Adjudication Officer held that the complaint was well-founded and awarded him six days’ pay for annual leave and three days’ pay for public holidays.
For ease of reference the parties are given the same designation as they had at first instance. Hence Mr Joseph Mitchell will be referred to as “the Complainant” and Tapastreet Limited will be referred to as “the Respondent”.
The Complainant referred his claim under the Act to the Workplace Relations Commission on 5thNovember 2015. By application of the time limit provided for at Section 27(4) of the Act the cognisable period for the purpose of this claim is confined to the six-month period ending on the date on which the complaint was presented to the Workplace Relations Commission, therefore, the cognisable period covered by the claim is the six-month period from 6thMay 2015 until 5thNovember 2015.
Background
The Respondent is a Dublin-based technology start-up which was founded in 2012. The Complainant was a co-founder and Chief Executive Officer of the Respondent. His employment terminated on 16 October 2015.
Annual Leave
Mr Ger Connolly, Solicitor, Mason Hayes & Curran, Solicitors, on behalf of the Complainant, stated that in accordance with his contract of employment he was entitled to 23 days' annual leave per year and had accrued twenty days’ annual leave at the date of the termination of his employment. He availed of seven days’ annual leave from 4thto 12th June 2015 and one day in August 2015. The Respondent produced evidence to the Court indicating that the Complainant availed of annual leave on 7th, 8th and 11th May 2015 and the Complainant conceded that point. Therefore he submitted that he had a balance owing to him.
Mr Peter O’Brien, B.L., instructed by Patrick F. O’Reilly & Co., Solicitors, on behalf of the Respondent, disputed the claim in respect of annual leave andsubmitted that the Complainant, as CEO, was the person responsiblefor managing his own workschedule and takingand recording his ownstatutory holiday entitlements.
The cognisable period covered by the claim is the six-month period from 6thMay 2015 until 5thNovember 2015. The relevant leave year is defined by Section 2(1) of the Act, it provides that a leave year is a year commencing on 1stApril. Hence, any contravention of the Act arising from the Respondent’s failure to pay the Complainant in respect of outstanding annual leave on the cessation of his employment accrued within the period, i.e. from 1stApril to 16thOctober 2015. In so far as the complaint relates to the Respondent's failure to pay the Complainant in respect of annual leave taken on dates prior to those dates, it is statute-barred and, to that extent, it is not cognisable by the Court.
Section 19 of the Act provides that an employee is entitled to a maximum of 20 days paid leave in a leave year. As the Complainant worked six and a half months in that leave year, he accrued a statutory entitlement of 10.8 days annual leave. As the Complainant accepted that he has exceeded that entitlement therefore the Court does not find in favour of his claim. Accordingly, the Court does not find that the Respondent was in breach of Section 23 of the Act.
Public Holidays
The Complainant claimed that he had an outstanding entitlement to three public holidays, Easter Sunday, Easter Monday and the first Monday in August 2015. As Easter Sunday is not a public holiday there is no statutory obligation to give an entitlement in respect of that day. The Court must examine the complaints in respect of each public holiday which fell within the cognisable period. As Easter Monday fell on 6 April 2015, it is outside the cognisable period and therefore that claim is statute barred. The Respondent conceded that the Complainant had not received his entitlement in respect of the August 2015 public holiday, and as the Complainant accepts that he did not work on that day, the Court finds that he is entitled to a day’s pay in respect of that day.
Determination
Based on the findings above the Court varies the Decision of the Adjudication Officer and awards the Complainant the sum of €269.23 in respect of the breach of Section 21 of the Act.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
CR______________________
2nd February, 2017Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.