FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : BRADLEY CONSTRUCTION LTD - AND - SONYA MCGEE (REPRESENTED BY GALLAGHER MCCARTNEY SOLICITORS) DIVISION : Chairman: Mr Duffy Employer Member: Mr Grier Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioner's Decision WT18446/04/TB.
BACKGROUND:
2. The worker concerned was employed by the Company from 17th November, 2002 to 24th November, 2003, as a receptionist. She worked a 40 hour week and was paid €6.35 per hour.
The issue before the Court is a claim for Sunday Premium, annual leave and Public Holidays in the period 17th November, 2002 to 24th November, 2003.
The claim was referred to a Rights Commissioner for investigation. His decision issued on the 21st October, 2004, in which he upheld the workers claim and awarded her €1,000 in compensation.
The worker appealed the Rights Commissioner's decision to the Labour Court on the 5th November, 2004, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. The Court heard the appeal on the 9th March, 2005.
WORKER'S ARGUMENTS:
3. 1. The worker concerned is entitled to payment in respect of Sunday Premium, annual leave and Public Holidays during the period of her employment.
COMPANY'S ARGUMENTS:
4. 1. The Company agree thatmonies are due to the worker in respect of the headings named above.
DETERMINATION:
The claimant is claiming payment in the amount of €3,205.24 in respect of underpayment of Sunday Premium, annual leave and Public Holidays in the period 17th November, 2002 to 24th November, 2003.
The claim was presented to a Rights Commissioner on 3rd February, 2004.
Section 27(4) of the Organisation of Working Time Act, 1997 provides that a complaint alleging an infringement of the Act must be presented to a Rights Commissioner within 6 months of the date of the contravention to which the complaint relates. In the case of the complaints relating to payment for Sunday working and working on Public Holidays the effect of Section 27(4) is to limit the Court's jurisdiction of alleged underpayment on dates falling within this limitation period.
Section 27(5) of the Act provides that an extension of the time limit by up to a further 12 months may be granted where the failure to present the complaint in time was due to reasonable cause.
The Solicitor for the claimant told the Court that the parties were in correspondence in relation to the underpayments constituting the contravention complained of and in consequence the complainant anticipated that the matter could be resolved without the need to initiate proceedings.
In the circumstances the Court accepts that reasonable cause was shown for the delay and accordingly the Court determined that the time be extended to cover the totality of the claimant's claim.
The respondent agreed that monies were due to the claimant under each of the headings claimed. It was further agreed that the amount due and owing exceeded the amount awarded by the Rights Commissioner. In the course of the hearing the respondent measured the amount due to the claimant at circa €2,186, the difference between the parties relating mainly to the number of Sundays worked.
The claimant was not provided with pay slips and while the claimant did sign time sheets recording her attendance hours, these were not retained by the respondent. Matters were further complicated by the delay in presenting the claim in that there was some uncertainty in relation to the number of Sundays worked in 2002.
There is no doubt that the Act was contravened by the respondent in relation to the claimant. In dealing as best it can with the information available to it the Court is of the view that the claimant should receive a further €2,000 in compensation in addition to that awarded by the Rights Commissioner for the infringements of the Act of which she complained.
The appeal is allowed and the decision of the Rights Commissioner is amended so as to substitute an award of €3,000 for that contained therein.
Signed on behalf of the Labour Court
Kevin Duffy
24th March, 2005______________________
MG.Chairman
NOTE
Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.