FULL RECOMMENDATION
SECTION 28 (1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : KEVIN DELANTY FOOD CO LTD T/A VERDE - AND - JACK DELANEY DIVISION : Chairman: Ms O'Donnell Employer Member: Mr Murphy Worker Member: Ms Tanham |
1. An appeal of an Adjudication Officer's Decision No(s)ADJ-00020794 CA-00027390-001
BACKGROUND:
2. The Employer appealed the Decision of the Adjudication Officerto the Labour Court on 3 January 2020 in accordance with Section 28 (1) of the Organisation of Working Time Act 1997. A Labour Court hearing took place on 26 February 2020. The following is the Determination of the Court:-
DETERMINATION:
Background
This is an appeal by Kevin Delanty Food Co Ltd trading as Verde against an Adjudication Officer decision ADJ-00006146 in a complaint by Jack Delaney former employee, pursuant to s.41 of the Workplace Relations Act 2015. The complaint relates to alleged contraventions of the Organisation of Working Time Act 1997 (the Act) in relation to the payment of holiday pay. The Adjudication Officer awarded the Complainant € 684.40 for economic loss and a further €369.00 compensation.
In line with the normal practice of the Court, the parties are referred to in this Determination as they were at first instance. Hence, Jack Delaney is referred to as the Complainant and Kevin Delanty Food Co Ltd trading as Verde is referred to as the Respondent. The Complainant was employed by the Respondent from the 6thApril 2018 to the 16thMarch 2019. The complaint was lodged with the WRC on the 29thMarch 2019.
Complainant’s Case
It is the Complainant’s case that he was not granted annual leave for the months he was working in the calendar year 2018. The Complaint confirmed that he did receive his annual leave entitlement for the months he worked in the calendar year 2019.
Respondent
The Respondent submitted that it was a start up business and that in 2018 he had facilitated the Complainant with flexible working and that the Complainant had indicated that he did not want any annual leave for the months worked in 2018. The Respondent was unable to point to any section of the Act that permitted an employee to opt out of taking their annual leave entitlement.
Discussion
Section 19 of the Act states “….an employee shall be entitled to paid annual leave..”. it was accepted in the course of the hearing that this section of the Act had been unintentionally breached. It was also accepted in the course of the hearing that based on the hours worked for the entire period and deducting the annual leave that had been taken that 66.30 hours were owed to the Complainant.
The Complainant’s hourly rate of pay at the time of leaving the employment was €10.25 per hour giving an economic loss of € 679.57. While the Court notes the Respondent’s position that he did not realise that annual leave had to be given in accordance with the Act, there is an onus on an employer to familiarise themselves with their obligations under the Act. The court therefore awards compensation of €250 as being an appropriate amount in all the circumstances of this case.
Determination
The Court having carefully considered the submissions of the parties makes an award of €679.57 in respect of economic loss and awards €250 compensation for the breach of the Act. The decision of the Adjudication Officer is varied accordingly.
The Court so determines.
Signed on behalf of the Labour Court
Louise O'Donnell
DC______________________
3 March 2020Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to David Campbell, Court Secretary.