FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : DUBLIN BUILDING SERVICES (REPRESENTED BY DOYLE HANLON SOLICITORS) - AND - ROLANDAS VENCKUTONIS (REPRESENTED BY P.C. MOORE & CO.) DIVISION : Chairman: Mr McGee Employer Member: Mr Grier Worker Member: Mr Nash |
1. Appeal Against Rights Commissioner's Decision R-042933-WT-06/TB
BACKGROUND:
2. The worker was employed by the respondent from June 2005 to April 2006. The worker claimed that he was required to work over 48 hours a week during his period of employment. He did not receive adequate rest periods and no records of his employment were kept by his employer. The employers claim that the worker was only employed on a casual basis and would work only two or three days a week when required. The worker did not work in excess of what is permitted by legislation and received sufficient rest periods. The Rights Commissioner awarded the worker €1250 by way of compensation for the employers breaches of the Act.
The employee 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 21st February, 2007. The Court heard the appeal on the 28th June, 2007.
APPELLANT'S ARGUMENTS:
3. 1 The appellant stated that the amount of compensation awarded by the Rights Commissioner was too low. In the case of Goode Concrete V Dermot Munro, (Labour Court Reference DWT051) the Court found that in measuring the amount of compensation that is just and equitable, the Court should take account of the gravity of the infringement which is found to have accrued and should also have regard to the inconvenience and expense incurred by the worker in pursuing the claim.
2 In addition the gravity of the situation was compounded by the fact that the employer has no records whatsoever. The Appellant contends that in such a situation, particularly where the employee has been working over 48 hours a week , with no proper rest periods that the level of compensation should include a sum calculated to deter future infringements
RESPONDENT'S ARGUMENTS:
4. 1 The worker was employed on a casual basis. He worked two or three days a week when required and with sufficient rest periods. Therefore, the company deny they are in breach of any time limits stipulated in legislation.
2 If working form eight o'clock in the morning to six o'clock in the evening, the worker received two rest periods and more after that. The Respondent denies that it was in breach of the Organisation of Working Time Act, 1997.
DETERMINATION:
The Court has considered the submissions made by and on behalf of both parties. While the Court has had great difficulty establishing agreed facts on this case, it is beyond argument that the appellant worked for the Respondent from June 2005 to April 2006.
It is also admitted fact that no records covering the Respondents obligations under the Act have been or can be provided. The onus for production of such records lies with the Respondent. The obligation to provide such records exists for reasons of health and safety.
In "Von Colson & Kamann V Land Nordrhein - Westfalen" [1984] ECR 1891, the European Court of Justice stated that where a worker's rights are infringed and a member state chooses to penalise breaches of that legislation by an award of compensation, then in order to ensure that it is effective and has a determent effect, the compensation must be adequate in relation to the damage sustained and must amount to more than nominal compensation such as repayment of the expenses incurred. It is for the National Courts to interpret and apply the legislation adopted for the implementation of the Directive in conformity with the requirements of Community Law.
Applying this principle, this Court takes the view that an award of compensation for the economic loss suffered by a worker under National legislation transposing EU legislation would not be sufficient to comply with the requirements of Community law. An award of compensation must contain some deterrent effect.
The Court allows the appeal and varies the Rights Commissioner's award to €2500. The Respondent is directed to pay the Appellant compensation in that amount
Signed on behalf of the Labour Court
Raymond McGee
27th July, 2007______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to David P Noonan, Court Secretary.