Richard Grogan: Adjudication Officers appear to be misapplying working time law
Employment law solicitor Richard Grogan of Richard Grogan & Associates examines cases where the Organisation of Working Time Act 1997 appears to be misapplied.
In the case ADJ-15102, an employee brought a claim against their employer for public holiday pay. The Adjudication Officer in this case upheld the complaint. An award of €500 was made.
The Adjudication Officer in this case stated that the Von Colson and Kamann principles apply. We would not necessarily agree with this view. The Von Colson and Kamann principles would certainly apply in relation to holiday pay. In relation to public holiday pay, this is not an issue covered by the Directive and therefore, in our opinion, the Von Colson and Kamann principles do not apply.
An Adjudication Officer in a case under a claim for public holiday pay is still entitled to award up to two years’ wages for a breach, but we disagree with the view that they must apply the Von Colson and Kamann principles.
When, however, you look at case ADJ-7697, a case where an employee was not paid their holiday pay, the Adjudication Officer simply awarded the economic loss. As this is a claim for holiday pay under the Act, and as holiday pay is a specific right protected by the Directive, in this case the Adjudication Officer should have, in our opinion, looked at the Von Colson and Kamann principles in setting compensation on top of the financial loss.
The issue of holiday pay is a fundamental right. This is guaranteed by the Directive and by the Charter. The CJEU has recently ruled on this issue again and confirmed that it is a fundamental right. In those circumstances, in our opinion, the Adjudication Officer should have applied the Von Colson and Kamann principles and awarded the compensation on top of the economic loss.
- Richard Grogan is the principal solicitor at Richard Grogan & Associates Solicitors. You can subscribe to the firm’s monthly newsletter at grogansolicitors.ie.