FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : GERRY KELLY ENTERPRISES LIMITED - AND - ANDRIS REINFELDS DIVISION : Chairman: Mr Duffy Employer Member: Mr Pierce Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioner's Decision No. WT6001/01/GF.
BACKGROUND:
2. The worker was employed as a bricklayer from the 21st of April, 2001 to the 15th of June, 2001. He states that he was not paid for public holidays or for annual leave which he claims he was entitled to.
DETERMINATION:
Background
The claimant in this case is a bricklayer. He made a complaint pursuant to Section 27 of the Organisation of Working Time Act 1997 (the Act) alleging that his former employer, Gerry Kelly Enterprises Ltd (the respondent) failed to grant him paid public holidays and annual leave to which he was entitled under the Act.
The complaint was investigated by a Rights Commissioner on 17th October 2001. The claimant did not attend the investigation (for reasons which were explained to the Court) and in those circumstances the Rights Commissioner struck out the complaint. It is against that decision that the claimant appealed to the Court.
The evidence.
Having been duly notified of the time, date and venue of the hearing of the appeal, the respondent failed to attend or to communicate with the Court in respect of the claim under investigation. The claimant, who is a non-national, gave evidence with the assistance of an interpreter. He told the Court that he had been brought to Ireland to work in the construction industry. A work permit had been issued in respect of his employment. He worked for the respondents between the dates detailed below at a construction site in Navan, Co Meath.
The claimant told the Court that he was not paid in respect of Public Holidays which occurred during the currency of his employment. He also claimed that the respondent did not grant him any annual leave nor did he receive any payments in respect of such leave upon the termination of his employment. He made other complaints concerning non-payment of wages and in relation to the employment conditions afforded him by the respondent. However, those complaints do not come within the scope of the Act and cannot be addressed in the present proceedings.
Conclusions of the Court
On the uncontradicted evidence before it, the Court is satisfied that the claimant did not receive his entitlements in respect of annual leave and public holidays. Accordingly, the Court finds that the complaint herein is well founded.
The claimant’s holiday entitlements, based on his period of employment and the hours worked in the relevant periods, are as follows:-
| Period of Employment | Public Holidays | Annual Leave (days @ 1.66 per qualifying month) | Total (days) |
| 21 April 2001 - 15 June 2001 | 7th May - 4th June | 3.33 | 5.33 |
Rate of Pay.
The claimant told the Court that he was paid at the rate of €6.35 (£5) per hour. The Court is aware that at the material time the minimum rate applicable to craft workers in the construction industry, negotiated between the CIF and the construction unions, was €13.81 per hour. The Court is also aware that rates of pay and conditions of employment in the construction industry are regulated by an employment agreement registered with the Court pursuant to Section 26 of the Industrial Relations Act 1946. The Court is satisfied that the claimant and the respondent were encompassed by the REA at all material times.
Regrettably, the rates prescribed in the REA have not been updated in recent times and the rate currently registered is €8.09, (€64.72 per day) which relates to April 1997.
Section 30 of the Industrial Relations Act 1946 provides, in effect, that where the rate of pay prescribed in a contract of employment of a worker to whom a Registered Employment Agreement relates, is less than the rate prescribed in the REA, the contract shall have effect as if the agreement rate were substituted for the contract rate. Thus, in considering the question of compensation, it is the REA rate, and not the contract rate, which is to be taken into account.
Redress.
Section 27(3) provides that where a complaint under the Act is well founded the remedies available include an award of compensation of such amount as is just and equitable having regard to all the circumstances. In measuring the level of compensation which is just and equitable in the instant case, the Court has had regard not only to the monetary value of the holidays to which the claimant was entitled but also to the special circumstances surrounding the case.
These special circumstances include the exceptional degree of inconvenience and distress which the claimant suffered in bringing these complaints. This arose by reason of his limited ability to communicate in English, together with his lack of familiarity with statutory employment rights and the enforcement procedures of the State. The Court is further satisfied that those factors rendered the claimant vulnerable to exploitation and that he was in fact exploited.
Determination.
Having determined that the complaints herein are well founded the Court is satisfied that the appropriate redress is an award of compensation as follows:
- Compensation for loss of Holidays.
5.33 days @ €64.72 per day = €344.96.
Additional Compensation:
€1,000
Total Award
€1,344.96
Signed on behalf of the Labour Court
Kevin Duffy
15th March, 2002______________________
LW/CCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Larry Wisely, Court Secretary.