FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : DAMOLI CONSTRUCTION SOLUTIONS LTD (REPRESENTED BY KEN FARRELL LIQUIDATOR) - AND - GRAZYVDAS JARASIUS, ROBERTAS SABALIAUSKAS, RITVARS BOZS (REPRESENTED BY P.C. MOORE & CO.) DIVISION : Chairman: Mr Duffy Employer Member: Mr Grier Worker Member: Mr Nash |
1. Appeal of Rights Commissioner's Decision R-044839 R-044842 - R-043028-WT-06/DI.
BACKGROUND:
2. The Company primarily worked on construction contracts for the Irish Prison Service premises and is now in Voluntary Liquidation. The Claimants made complaints to the Rights Commissioner Service, but failed to appear at the hearing due to their confusion over the time and date. A hearing took place on the 10th November, 2006 and the Decision of the Rights Commissioner is as follows:-
"The complaints brought by Mr. Grazyvdas Jarasius and Mr Robertas Sabaliauskas under the Organisation of Working Time Act, 1997, fail for want of prosecution"
and for Ritvars Bozs's case:-
"The claimant's complaint under the Organisation of Working Time Act,1997, fails for want of prosecution".
The Workers appealed the Rights Commissioner's decision to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997 on the 8th January 2007. The Court received a letter from the Liquidator stating that they would not defend the claim. The Court heard the appeal on the 14th June 2007.
CLAIMANT'S ARGUMENTS:
3.1 Grazyvdas Jarasius and Robertas Sabaliauskas gave verbal evidence that they worked between five and six months with the Company. They received a 30 minute lunch break and did not receive any other break if working after 6pm.
2. Ritvars Bozs stated through an interpreter that he occasionally worked after 6pm and he did not receive any break.
DETERMINATION:
The Claimants herein made complaints to a Rights Commissioner pursuant to various provision of the Organisation of Working Time Act 1997 (the Act) alleging contraventions of the Act relating to their total weekly working hours, rest periods and holiday pay, while employed by Damoli Construction Solutions Ltd. (In Voluntary Liquidation). The Claimants did not appear before the Rights Commissioner when these claims came on for hearing. The Rights Commissioner dismissed the claims for want of prosecution.
The representative of the Claimant's told the Court that their failure to appear before the Rights Commissioner was due to confusion as to the date set for hearing. The representative further told the Court that they were proceeding with the appeal only in so far as concerns the alleged failure of the Respondent to provide the rest period prescribed by S12(1) of the Act.
Prior to the hearing of this appeal the Liquidator of the Respondent wrote to the Court by letter dated 8th June indicating, inter alia, that he did not intend to defend the claims. They did not appear before the Court at the hearing of the appeal.
Evidence.
Each of the Claimants gave evidence before the Court. Grazyvdas Jurasius and Robertas Sabaliauskas told the Court in evidence that they regularly worked for the Respondent at a site in Dublin after 6pm. They received a 30 minute break at 1pm but did not receive any breaks thereafter. This continued in their case for a period of between five and six months. Ritvars Bozs told the Court in evidence, through an interpreter, that he worked after 6pm occasionally and did not receive a break other than a 30 minute break at 1pm.
Determination.
Section 12(1) of the Act provides that an employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes. On the uncontradicted evidence of the Claimants the Court is satisfied that this provision of the Act was contravened by the Respondent in respect of each of them and that their claims are well founded.
Redress.
The obligation to provide rest periods is imposed for health and safety reasons. The right of workers to adequate protection of their health and safety in the workplace is a fundamental social right in European Law (see comments of Advocate General Tizzano inR v Secretary of State for Trade and Industry, ex parte Broadcasting, Entertainment Cinematography and Theatre Union [2001] IRLR 559which were quoted with approval inRoyal Liver Assurance Limited v Mackin & Others High Court Unreported Lavin J 15th November 2002.
In Von Colson & Kamann v Land Nordrhein - Westfalen [1984] ECR 1891the ECJ has made it clear that where such a right is infringed, the judicial redress provided should not only compensate for economic loss sustained but must provide a real deterrent against future infractions. Section 27(3)(c) provides that compensation of such amount as is just and equitable having regard to all the circumstances, but not exceeding two years remuneration in respect of the employees employment may be awarded. In measuring the amount that is just and equitable the Court has taken account of the gravity of the infringements which it has found to have occurred. It has also had regard to the inconvenience and expense incurred by the Claimant in pursuing this claim at first instance and in defending this appeal.
The Court has measured the amount of compensation which is just and equitable in this case at €1,500 in the case of Grazyvdas Jarasius and Robertas Sabaliauskas and at €750 in the case of Ritvars Bozs. The respondent is directed to pay the Claimant compensation in that amount.
Signed on behalf of the Labour Court
Kevin Duffy
1st July, 2007______________________
JFChairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.