FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : SOLID BUILDING COMPANY LIMITED - AND - SERGEJS BARANOVS (REPRESENTED BY PC MOORE & CO) DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. Appeal against a Rights Commissioner's Decision R-051490-Wt-07/RG.
BACKGROUND:
2. This case concerns an appeal by the Worker of Rights Commissioner's Decision r-051490-wt-07/RG.The Worker was employed by the Company as a Carpenter from 31st October, 2006 until 6th December, 2006.The Worker referred his case for alleged infringements of the Organisation of Working Time Act, 1997 to a Rights Commissioner for investigation and a hearing was arranged for 9th January, 2008. Neither the Worker nor the Employer attended the Rights Commissioner hearing. The Rights Commissioner's Decision was as follows:
"The complaint fails for lack of prosecution".
The Worker appealed this Decision to the Labour Court on 20th February, 2007, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 1st May, 2008. The Employer did not attend the hearing.
3. 1.The Worker normally commenced work at 8am and worked to either 8pm or 9pm Monday to Friday, and from 8am to 5pm on Saturdays.
2.The Worker was not paid holidays by the Company.
DETERMINATION:
Sergesjs Barnovs (the Claimant) brought a complaint against Solid Building Company Ltd (the Respondent) alleging infringements of the Organisation of Working Time Act, 1997 (the Act), in relation to his employment with that Company. The complaint came before a Rights Commissioner but the Claimant failed to attend for reasons which were explained to the Court. The Rights Commissioner dismissed the claim for want of prosecution. The Claimant appealed this to this Court.
At the hearing of the appeal the Respondent did not appear and was not represented. The Court is satisfied that the Respondent was advised of the time, date and venue of the hearing.
The Evidence
In evidence the Claimant told the Court that he worked for the Respondent as a Carpenter from 31st October, 2006 until 6th December, 2006. He received no payments from the Respondent by way of wages or otherwise.
The Claimant told the Court that he normally commenced work at 8am and worked to either 8pm or 9pm Monday to Friday. He worked on Saturdays from 8am to 5pm. The Claimant gave evidence of having normally received a 30-minute break at 10am and a further break of 30 minutes duration at 1pm. He said that he was usually told each day what time he would finish on that day. The Claimant also told the Court that he received no holiday pay (nor any other payments from the Respondent).
The Claimant is claiming redress for infringements of Sections 12(1), 17(2) and 23(1) of the Act.
Conclusion of the Court
On the uncontradicted evidence of the Claimant the Court is satisfied that his complaint is well-founded.
Redress
InCementation Skanska (Formerly Kvaerner Cementation) Limited and Tom Carroll, Determination DWT0338this Court stated as follows in relation to the computation of compensation for failure to provide annual leave in accordance with the Act:
"The obligation to provide annual leave is imposed for health and safety reasons and the right to leave has been characterised as a fundamental social right in European Law (see comments of Advocate General Tizzano in R v Secretary of State for Trade and Industry, ex parte Broadcasting, Entertainment Cinematography and Theatre Union [2001] IRLR 559 which were quoted with approval by Lavin J in the Royal Liver case). In Von Colson & Kamann v Land Nordrhein – Westfalen [1984] ECR 1891 the 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."
In the Court's view similar considerations apply in computing compensation for contraventions of Sections 12, 17 and 23 of the Act. The economic value of the holiday pay of which the Claimant was deprived amounts to €418. The Court is, however, satisfied that the Respondednt acted in flagrant disregard of its obligations in domestic and Community law and in a manner which was oppressive and exploitive of the Claimant. The Court is also satisfied that the Claimant suffered significant inconvenience and expense in seeking to vindicate his rights. Accordingly, the quantum of compensation which could be regarded as appropriate must go considerably beyond the economic value of the loss sustained.
In all the circumstances the Court measures the compensation which is appropriate in this case at €3,000, which includes €418 being the value of the holiday pay due and the remaining €2,582 in respect of the effect on the Claimant of the transgressions found to have occurred.
Signed on behalf of the Labour Court
Kevin Duffy
21st May,2008.______________________
JMcC.Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.