DWT1828

FULL RECOMMENDATION

WTC/18/43

DETERMINATIONNO.DWT1828

ADJ-00009849 CA-00012904-002/009/010/011/012/013

SECTION 28 (1), ORGANISATION OF WORKING TIME ACT, 1997

PARTIES :

DFS TRADING LIMITED
(REPRESENTED BY MARY PAULA GUINNESS, B.L., INSTRUCTED BY EVERSHEDS SOLICITORS)

- AND -

WIKTOR GLOGIEWICZ
(REPRESENTED BY BLAZEJ NOWAK)

DIVISION :

Chairman: Ms Jenkinson
Employer Member: Ms Doyle
Worker Member: Ms Treacy

SUBJECT:
1. An appeal of an Adjudication Officer's Decision no ADJ-00009849.

BACKGROUND:

2. The Worker referred his case to the Labour Court on the 19^thJune 2018. A Labour Court hearing took place on the 19^thOctober 2018. The following is the Determination of the Court:

DETERMINATION:

This is an appeal by Mr Wiktor Glogiewicz of an Adjudication Officer’s Decision ADJ-00009849, CA-00012904-002, 009, 010, 011, 012, and 013 which found against his claims taken under the Organisation of Working Time Act, 1997 (the Act). The Adjudication Officer found against each aspect of his claims under the Act.

The Court is satisfied that there is a valid appeal before the Court.

For ease of reference the parties are given the same designations as they had at first instance. Hence Mr Wiktor Glogiewicz will be referred to as “the Complainant” and DFS Trading Limited will be referred to as “the Respondent”.

The Complainant referred his claim under the Act to the Workplace Relations Commission on 23^rdJuly 2017.

Background

The Complainant commenced employment with the Respondent on 14^thJune 2016 as a driver helper and subsequently became a HGV driver/helper. The Complainant’s employment terminated on 2^ndJuly 2017. His basic annual salary was €25,419.68.

Summary of the Complainant’s Case

Mr Blazej Nowak on behalf of the Complainant submitted that the Respondent was in breach of the Act. In his written submission to the Court, Mr Nowak stated that a lot of his claims depend on the outcome of the Complainant’s case on appeal under the National Minimum Wage Act 2000.

A number of alleged breaches under the Act were referred to the Workplace Relations Commission, however, on appeal to this Court, Mr Nowak referred to one alleged breach of the Act. He alleged that between 14^thJune 2016 and 31^stMarch 2017, the Complainant had not received his full annual leave and was owed one day. He submitted that as the Complainant had worked in excess of 1365 hours in that period that he was entitled to 20 days annual leave and he had only received 19 days. No details of alleged breaches of other aspects of the Act were given to the Court.

Summary of the Respondent’s Position

Ms Mary Paula Guinness, B.L., instructed by Eversheds Solicitors on behalf of the Respondent denied that the Respondent was in breach of the Act. She submitted that as the Complainant commenced employment with the Respondent on 14^thJune 2016 he received 19 days in the holiday year 2016-2017 and he had taken 15 paid days leave in the leave year 2017 - 2018 while he had only accrued an entitlement to 14 days.

She contended that there were no other breaches of the Act, the Complainant has received his full rest entitlements and he had been give advance notice of additional (overtime) hours to be worked.

The Law

Section 19 of the Act provides that the entitlement to annual leave is as follows:-

- "4 working weeks in a leave year in which he or she works at least 1365hours' (unless it is a leave year in which he or she changes employment),
  
  One-third of a working week for each month in the leave year in which he or she works at least 117hours, or 8 per cent of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):
Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater."

Findings and Conclusions of the Court

Based on the cognisable period covered by the claim under the Act, the relevant period is the six-month period from 22^ndJanuary – 23^rdJuly 2017. As this period straddles two leave years the Court will examine the annual leave entitlements for the leave years 2016-2017 and 2017-2018.

Having considered the submissions made by both parties and having examined the records of the Complainant, as supplied by the Respondent, the Court notes that the Complainant did not work a full leave year in either the leave year 1^stApril 2016 to 31^stMarch 2017 or the leave year 1^stApril 2017 to 31^stMarch 2018 (his employment terminated on 2^ndJuly 2017). Therefore, based on the fact that he was granted 19 days leave in the years leave 2016 – 2017, when he only worked 9 ½ months in that leave year, the Court is satisfied that he received more than his statutory entitlement in that leave year. Similarly based on the fact that he only worked slightly over 3 months in the 2017 – 2018 leave year and was granted 14 days leave, once again the Court is satisfied that he had more than his statutory entitlement in that leave year.

Having examined the records provided by the Respondent the Court does not find that the Respondent was in breach of Section 19 of the Act, In the absence of specific allegations from the Complainant, the Court can find no grounds to uphold claims that there were further breaches of the Act.

Determination

The Court upholds the Decisions of the Adjudication Officer and dismisses the appeals.

The Court so Determines.

Signed on behalf of the Labour Court

Caroline Jenkinson
CR______________________
9 November, 2018.Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.