FULL RECOMMENDATION
SECTION 28 (1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : CANDLEVALE LIMITED TRADING AS MALDRON HOTEL (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - ANNA GORCZYCA-GEBICKA (REPRESENTED BY BLAZEJ NOWAK) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr McCarthy |
1. Appeal Of Adjudication Officer DecisionNos:ADJ-00008553 CA-00011256 CA-00012484 CA-00015105)
BACKGROUND:
2. An Adjudication Officer hearing took place on 29 March 2018 and a Decision was issued on 17 May 2018. The Employee appealed the Decision of the Adjudication Officer to the Labour Court on 14 June 2018 in accordance with section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 5 October 2018.
DETERMINATION:
This is an appeal by Ms Anna Gorczyca-Gebicka against the Decisions of an Adjudication Officer Nos. ADJ-00008553, CA-000015105-001 and CA-00011256-001/002/003/004/005/006/007 andCA-00012484-001under the Organisation of Working Time Act, 1997 (the Act). Ms Gorczyca-Gebicka claimed that her employer, Candlevale Limited t/a Maldron Hotel, had breached various Subsections of the Act. The Adjudication Officer declared that the complaint was well-founded and awarded the sum of €333.47 in respect of her public holiday entitlement. He found that her claim under Section 14 of the Act was not well- founded.
For ease of reference the parties are given the same designations as they had at first instance. Hence Ms Anna Gorczyca-Gebicka will be referred to as “the Complainant” and Candlevale Limited t/a Maldron Hotel will be referred to as “the Respondent”.
Claim Number CA-000015105-001 was referred under the Act to the Workplace Relations Commission on 16thOctober 2017 and concerned a claim in respect of the public holiday which occurred on 7thAugust 2017. Claims Numbers CA-00011256-001/002/003/004/005/006/007 were referred under the Act to the Workplace Relations Commission on 9thMay 2017 and concerned public holiday and annual leave entitlements and a claim under Section 14 in respect of a Sunday Premium entitlement.Claim CA-00012484-001 was referred under the Act to the Workplace Relations Commission on 12th July 2017 and concerned Public Holiday entitlements.
Background
The Complainant had been employed as a Food & Beverage Assistant in the Hotel’s restaurant since 17thOctober 2004. At the relevant period her rate of pay was €10.09 per hour. The Complainant was on annual leave from 16thDecember 2016 for two weeks. The Complainant was on certified sick leave from 23rdJanuary 2017 until 14thApril 2018, apart from two days, 30thJanuary and 10thMarch. She was absent on certified sick leave from mid-July 2018 and returned to work on 13thSeptember 2018.
Position of the Parties
Mr Blazej Nowak, on behalf of the Complainant, informed the Court that the only claims before the Court were as follows: -
- (i)Section 14 claim in respect of Sunday Premium entitlements for eight Sundays worked in the cognisable period;
(ii)Section 20 claim as the Complainant did not receive her annual leave pay in advance of her holidays when she went on leave from 16thDecember 2016 for two weeks and, secondly, that she did not receive a Sunday Premium element in her annual leave pay; and
(iii)Section 22 claim that she did not receive a Sunday Premium in her public holiday pay in respect of eight public holidays – 25thand 26thDecember 2016, New Year’s Day 2017, 17thMarch 2017, Easter Monday 2107, 7thMay 2017, 5thJune 2017 and 7thAugust 2017.
Ms Judy McNamara, Ibec, on behalf of the Respondent, denied the allegations and submitted that the claim for payment in advance of annual leave was not raised before the Adjudication Officer. She stated that the Complainant’s contract of employment provided that her rate of pay for all hours worked was a composite rate of pay, inclusive of a Sunday Premium, which is currently 10%. Ms McNamara stated that the Complainant has been paid her full annual leave entitlement and paid in full for all public holidays to date inclusive of the composite rate which includes a Sunday Premium.
Findings of the Court
The Court notes that the Adjudication Officer’s award of €333.47 in respect of her public holiday entitlement has been discharged by the Respondent to the Complainant. Having examined the composite rate of pay, the Court is of the view that it falls short of the Sunday Premium normally applicable in this sector. The Court has examined the rates paid in respect of the period in question and has calculated that the outstanding amount due in respect of the seven Sundays worked by the Complainant in the cognisable period is €27.00. This amount is now due to be paid to the Complainant.
The Court calculates the outstanding amounts due in respect of the claims under Sections 19 and 22 of the Act are €6.00 and €2.40, respectively.
The Court can find no evidence to suggest that there was a claim under Section 20 of the Act in respect of any alleged breach of the Act in respect of the claim for payment in advance of annual leave and, as there is no decision on that claim in the Adjudication Officer’s Decision, there is therefore no decision on appeal before the Court. In any event, the Court notes that the Respondent confirmed for the Court that in the event of a request for payment in advance of annual leave, there would be no difficulty in facilitating employees in that regard.
Determination
The Court finds that the Complainant’s claims under Sections 14, 20 and 22 of the Act were well-founded and orders the Respondent to pay the Complainant the sum of €35.40.
The appeal is upheld and the Adjudication Officer’s Decision is varied accordingly.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
MK______________________
22 October 2018Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary.