FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : T J & M A CONSTRUCTION LIMITED - AND - JAROSLAW WLODARCZYK (REPRESENTED BY POLISH CONSULTANCY ENTERPRISE) DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Appealing against a Rights Commissioner's Decision R-061721-Wt-08/Jt.
BACKGROUND:
2. The worker commenced his employment on 1st February, 2007, and it ceased on 30th December, 2007. He was employed as a general operative in a construction industry company. His net rate of pay was €11.50 per hour. The worker 's case is that he did not receive annual leave or Public Holiday entitlements as follows;
Annual leave:the worker calculates that he is owed 18.34 days' annual leave which would equate to €2,077.11.
Public Holiday entitlements:the worker claims that he did not receive any entitlements for three Public Holidays - 29th October, 25th and 26th December of 2007.
The case was referred to a Right Commissioner and his decision was as follows:
"In considering this case no documentation or records in relation to payment or time off were submitted. The respondent stated to the hearing that the claimant was paid a rate of pay in his wages to cover his entitlements in regard to public holidays and annual leave. This is a breach of the Act as the whole purpose of getting time off is based on matters of health and safety. therefore the claimant was entitled to paid time off which he did not receive. I therefore find in part the claimants case well founded and award the claimant €1,110."
The worker appealed the decision to the Labour Court on the 26th January, 2009, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 1st April, 2009. The Company did not attend the hearing or forward a written submission. The following is the Court's determination:
DETERMINATION:
This is an appeal by Jaroslaw Wlodarckyk (Claimant) against the decision of a Rights Commissioner in his complaint against TJ & MA Construction Limited, (Respondent) under the Organisation of Working Time Act 1997. The substance of the complaint is that the Respondent failed to pay the Claimant in respect of annual leave during the currency of his employment and failed to allow the Claimant any of the benefits in respect of public holidays prescribed by Section 21 of the Act. The Claimant was employed by the Respondent between 1st January 2007 and 30th December 2007, when his employment terminated. The within complaint was lodged with the Rights Commissioner in February 2008.
The Rights Commissioner found that the complaint was well founded and awarded the Claimant compensation in the amount of €1,100.
The Claimant appealed against the quantum of compensation awarded.
The positions of the parties.
The Respondent
The Respondent was notified of the date, time and place fixed for the hearing of this appeal. The Respondent failed to attend or to communicate with the Court in relation to the appeal.
The Claimant
The Court was told that the Claimant was given annual leave during his employment with the Respondent but was not paid in respect of that leave. The Court was further told that the Claimant did not receive any benefit in respect of Public Holidays. Three Public Holidays occurred in the six months preceding the servnig of the within complaint, namely 29th October, Christmas Day and St. Stephen's Day 2007. The Claimant's claim in respect to public holidays is confined to those days.
The Claimant's representative told the Court that the economic value of the holidays withheld from the Claimant amounted to €2077.11, in respect of annual leave and €339.75 in respect to Public Holidays. It was pointed out that the total awarded made by the Rights Commissioner was significantly less than the economic value of the holiday pay withheld.
It was pointed out that, based on his service, the Claimant was entitled to 18.34 hours of annual leave. He was employed in the construction industry and the Registered Employment Agreement for that industry determined his rate of pay. At the material time the appropriate rate was €14.52 per hour.
Conclusion of the Court
The Court is satisfied that the complaint herein is well founded. The Court is further satisfied that the award made by the Rights Commissioner is inadequate.
It is trite law that the primary purpose of awarding redress is to place a successful claimant in the same position that he or she would have been in had it not been for the infringement of their legal rights. Where compensation is the mode of redress decided upon the Court is required to follow the decision of the ECJ inVon Colson and Kamann[1984] ECR 1891. Here it was held that sanctions for breaches of Community rights must be effective, proportionate and dissuasive. This means that the compensation awarded must fully compensate the complainant for the economic loss which he or she sustained as a result of the breach of their Community rights. It must also contain an element which reflects the gravity of the infringement and acts as a disincentive against future infractions.
The Court measures the economic loss suffered by the Claimant as a result of the infringement complained of at €2416.86. To this amount the Court adds a further amount measured at €333.14 in respect of the infringement of the Claimant's rights under the Act. The total awarded by the Court is, therefore, €2750.00.
Determination.
The appeal is allowed. The Rights Commissioner's decision is varied so as to substitute an award of compensation in the amount of €2750.00 for the award made by the Rights Commissioner.
Signed on behalf of the Labour Court
Kevin Duffy
9th April, 2009.______________________
CON.Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.