FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : MELBURY DEVELOPMENTS LIMITED - AND - ARTURS VALPETERS (REPRESENTED BY P.C.MOORE & CO.) DIVISION : Chairman: Mr McGee Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Appeal against Rights Commissioner's Decision R-042250-WT-06-DI.
BACKGROUND:
2. The Worker concerned was engaged by the Company for two periods from 19th May 2005 to 3rd January 2006 and from the 23rd January 2006 to the 18th February 2006.
The work available was of a temporary nature and the Company engaged him as a 'Labour only Sub-Contractor'. He was paid at the rate of €13.83 per hour and C45 tax was deducted from his gross earnings and submitted to the Revenue Authorities on his behalf. He was also paid when the site was closed for builders holidays.
The Worker claims that he was an employee of the Company and not a sub-contractor and refers to the Code of Practice for determining employment or self-employment status of individuals.
The dispute was referred to a Rights Commissioner for investigation. His decision issued on the 29th November 2006, in which he found that the claimant was an employee of the respondent Company. He awarded the claimant €1,000.00 in compensation.
The Worker appealed the amount awarded by the Rights Commissioner to the Labour Court on the 8th December, 2006, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. The Court heard the appeal on the 21st March, 2007, the earliest date suitable to the parties.
WORKER'S ARGUMENTS:
3. 1. The Worker maintains that he was required to work in excess of 48 hours per week, that he did not receive appropriate rest breaks and that the Employer failed to keep proper records.
2. The Worker is seeking compensation for the economic loss he has sustained and that the compensation should be at a level that would be a deterrent to the Employer to engage in future infractions of the legislation.
COMPANY'S ARGUMENTS:
4. 1.The Worker was a 'labour only sub-contractor' and carried out various jobs as required.
2. The Worker was paid at a rate that was higher than the rate for labourers under the Registered Employment Agreement for the Construction Industry.
DETERMINATION:
Conclusion
On the basis of the oral and written evidence presented to it at the hearing, the Court is satisfied that the claimant had the status of an employee, given the established criteria for the determination of such status. It is clear (and admitted) that no reliable records were kept. The Court agrees that the Respondent was not compliant regarding the question of breaks.
Redress
The Court therefore decides that Sections 12, 17 and 25 of the Act have been breached. InVon Colsenand Kamann v Land Nordrhein-Westfalen[1984] E.C.R. 1891, the ECJ has made it clear that where such individual rights are infringed, "the judicial redress provided should not only compensate for economic loss sustained but must provide a real deterrent against future infractions".
The Court adopts that reasoning in this case.
DETERMINATION
In all the circumstances of this case, the Court considers that the level of compensation awarded by the Rights Commissioner should be increased. The Court determines that the Respondent should pay the Claimant compensation in the amount of €5,000.00 in respect of all of the infractions of the Act which have been found to have occurred.
The appeal is allowed and the Decision of the Rights Commissioner is varied accordingly.
Signed on behalf of the Labour Court
Raymond McGee
25th April, 2007______________________
MG.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.