FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : PALE SPACE ART GALLERY CAFE - AND - DOROTA JUZKO DIVISION : Chairman: Mr Duffy Employer Member: Mr Grier Worker Member: Mr Nash |
1. Appeal against Rights Commissioner's Decision R-038914-Wt-05/TB.
BACKGROUND:
2. The worker, who is from Poland, made a number of complaints against her employer but the Labour Court could only deal with four of these which were as follows:
(1) She only received a 15-20 minute break during an 8-hour day.
(2) She was paid at the normal rate for working the August Bank Holiday in 2005.
(3) After ceasing work she was not paid any remaining holiday pay.
(4) No rosters were given. She was only made aware of the schedule one day in advance.
The worker referred her case to a Rights Commissioner. Due to a misunderstanding she did not attend the hearing and the Rights Commissioner issued his decision as follows:
"The complaint fails for want of prosecution"
The worker appealed the decision to the Labour Court on the 2nd of June, 2006, in accordance with Section 28(1) of the Organisation of Working time Act, 1997. A Labour Court hearing took place on the 21st of September, 2006.
WORKER'S ARGUMENTS:
3. 1. The worker did not receive a contract or conditions of employment and she received no proper training.
2. She did not receive proper breaks during the day.
3. Rosters changed on a daily basis and she had to check them every day. Sometimes she got a phone call two hours in advance to come to work early.
EMPLOYER'S ARGUMENTS:
4. 1. The worker had no English and it was very difficult to explain the work to her. However, the employer and her daughter made every effort to help the worker.
2. The worker received her proper breaks and the employer was insistent that she take them, depending on the length of shift.
3. The worker was paid for 40 hours each week regardless of the number of hours she worked. She received 9 days' leave in total for the time she was employed (27th of June 2005 - 18th of November 2005).
4. Employees knew their roster at least one week in advance. They changed rosters regularly to suit themselves.
DETERMINATION:
The Claimant submitted complaints to a Rights Commissioner alleging contraventions of a number of employment rights statutes by her former employer, the Respondent herein. For reasons which were explained to the Court the Claimant did not attend before the Rights Commissioner and her complaints were dismissed. She then appealed to this Court.
The only matters which could be dealt with by this Court are those coming within the ambit of the Organisation of Working time Act, 1997 (the Act). A number of other complaints arise under statutes in respect of which the Employment Appeals Tribunal and not this Court has jurisdiction.
The complaints which come within the scope of the Act are as follows:-
- 1. Complaint that the Claimant was not afforded her entitlement in respect of working on a Public Holiday (Section 21 of the Act)
2. Complaint that the Claimant was not paid cessor pay on the termination of her employment (Section 23 of the Act)
3. Complaint that the Claimant was not given minimum rest (Section 12 of the Act)
4. Complaint that the Claimant was not given her rosters in time (Section 17 of the Act).
Section 25 of the Act imposes an obligation on employers to maintain proper records to show whether the provisions of the Act are complied with. The form in which the records are to be maintained is prescribed by the Organisation of Working Time (Records) (Prescribed Form and Exemptions) Regulations 2001 (S.I.473 of 2001). Section 25 of the Act provides, in effect, that where records are not maintained in the manner required by the Section the onus is on the employer to prove compliance with the statutory provisions at issue.
The Respondent did not maintain records of the type required by the regulations. Consequently the Respondent bears the onus of proving compliance with the Act.
Having considered the submissions and evidence the Court is satisfied as follows:-
- 1. The Respondent contravened Section 21 of the Act by not providing the Claimant with any of the benefits prescribed by that Section in respect of the August Public Holiday 2005.
2. The Respondent contravened Section 23 of the Act by not paying the Claimant in respect of six days annual leave due to her on termination of her employment.
3. The Respondent contravened Section 17 of the Act in not providing the Claimant with at least 24 hours notice of her weekly rosters.
The Court has considered the Claimant's complaint that the Respondent contravened Section 12 of the Act by not providing her with the requisite daily rest. The Court is not satisfied that this complaint is well founded.
Redress.
Having regard to all the circumstances of the case the Court is satisfied that the appropriate form of redress in this case is an award of compensation in accordance with Section 27(3)(c) of the Act. The Court measures the amount which is just and equitable in all the circumstances of the case at €800.
The Claimant is awarded compensation in that amount.
Signed on behalf of the Labour Court
Kevin Duffy
9th October, 2006______________________
CON/MB.Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.