FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : JENNIFER HAMILTON WEDDINGS - AND - MS VIKKI CLIMO DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioner Decision R-049804-Wt-07/TB
BACKGROUND:
2. This case concerns an appeal by the employer of Rights Commissioner's Decision R-049804-Wt-07/TB. The dispute concerns alleged breaches of Sections 14, 19 and 21 of the Organisation of Working Time Act, 1997, (the Act) concerning Sunday Work, Annual Leave and Public Holiday entitlements, respectively.
The worker claims not to have received the correct Annual Leave entitlements, Sunday Premium or an additional day's pay for working on a Public Holiday.
The issue was referred to a Rights Commisioner for investigation. His Decision issued on 12th September 2007 awarding €644.76 for the non-payment of Annual Leave entitlements and €486 for the non-payment of Sunday Premium. The Rights Commissioner's Decision was silent on the issue of Public Holiday entitlement.
On the 24th October, 2007, the employer appealed the Decision of the Rights Commissioner in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 5th March, 2008.
WORKER'S ARGUMENTS:
3 1 The employer did not apply the correct entitlements under the Act. The correct Annual Leave entitlements were not applied, Sunday Premium was not paid for work carried out on Sundays and additional payment was not received for working on a Public Holiday.
COMPANY'S ARGUMENTS:
4 1 There are no outstanding payments due to the worker. The hourly rate of pay for Sunday work was €10 per hour which included a premium.
2 The worker paid herself for breaks which she was not entitled to do. On the basis of the overpayment there is no outstanding entitlement to Holiday Pay.
DETERMINATION:
This is a complaint by Ms. Vikki Climo (the Complainant) alleging that her former employer, Jenny Hamilton Weddings (the Respondent) contravened the Organisation of Working Time, 1997, (the Act).
The claims made to the Rights Commissioner concerned the Respondent’s alleged breach of sections 19 and 21 of the Act that she did not receive her full entitlements to annual leave or public holidays and she was not paid a premium for working on Sundays in breach of Section 14(1). The Rights Commissioner found against the Respondent and required it to pay the Complainant a total sum of €1130.76 in respect of breaches under section 19 and 14. The Rights Commissioner made no finding under section 21 of the Act.
The Respondent appealed this Decision to this Court.
(i) Section 14 Sunday work
The Complainant submitted that she was not paid a premium for working seven Sundays, 23rd July, 30th July, 27th August, 17th September, 24th September, 1st October and 12th November 2006.
The Respondent disputed two of these dates, however, the Court is satisfied from the evidence produced that the Complainant did work on each of these Sundays.
The Court notes that the normal rate of pay for venue-dressing work was €8.50 per hour, when this work was performed on Sundays the rate was €10.00 per hour, which includes a premium. The Complainant accepts that she was paid for each of the Sundays she worked but was not paid the premium.
The Court is satisfied that she was paid a Sunday premium for work performed on Sundays, therefore, there was no breach of the Act. Therefore, the Court overturns the Rights Commissioner’s Decision under section 14 of the Act.
(ii) Section 19 Annual Leave
The Complainant submitted that she did not receive her full annual leave entitlement. The Respondent accepted there was an outstanding entitlement to annual leave, however, there was a dispute between the parties on the number of hours worked.
Having examined all the information supplied to the Court, it is satisfied that she worked a total of 562.5 hours and calculates her outstanding annual leave pay at
€599.64.
(iii) Section 21 Public Holidays
The Complainant submitted that she was not paid any benefit for working on the public holiday, which fell on 7th August 2006. While she accepts that she was paid a day’s pay for the day, she claimed that she is entitled to an extra day's pay for the day.
The Court finds that she is entitled to €75.00 in respect of the public holiday entitlement claimed.
Determination
The Court has found that the Respondent has breached sections 19 and 21 of the Act. Therefore, the Complainant’s complaints are well-founded.
RedressThe Court is satisfied that the appropriate form of redress is an award of compensation.
InVon Colson & Kamann v Land Nordrhein – Westfalen [1984] ECR 1891the ECJ has made it clear that the judicial redress provided should not only compensate adequately
for economic loss sustained but must provide a real deterrent against future infractions. The Court measures the quantum which is fair and reasonable in all the circumstances at €1,000.00 and directs the Respondent to pay to the Complainant compensation in that amount.
For the avoidance of any doubt, the award of €1,000 includes the monies due in respect of the contraventions of the Act found above.
Accordingly, the Decision of the Rights Commissioner is varied. The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
16th April 2008______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.