FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : DUBLIN MEATH GROWERS - AND - DARIUSZ SERKOWSKI (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr McGee Employer Member: Mr Doherty Worker Member: Ms Ni Mhurchu |
1. Appeal of a Rights Commissioner's Decision r-060480-wt-08/JT.
BACKGROUND:
2. The Claimant, a foreign national, began working as a Loader with the Company at their premises at Kilshane Cross North Co. Dublin on 12th May, 2006 until his resignation which became effective on 12th July, 2007. After he ceased his employment, the Claimant lodged two complaints with the Rights Commissioner, alleging that the Company was in breach of both the Organisation of Working Time Act 1997 and Payment of Wages Act 1991. On 24th September, 2008 the Rights Commissioner issued his Decision as follows:
"I have considered the submissions made by both parties. I note that the Respondent had rectified outstanding monies due to the Claimant as regards holidays. I note that the Claimant had worked excessive hours (i.e. In excess of 48 hours) but was paid for lunch breaks and tea breaks. I therefore find the Claimants claim that there was a breach of the Act in part well founded.I therefore award him €430."
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 4th November, 2008. The Court heard the appeal on the 21st January, 2009.
DETERMINATION:
Having considered the submissions of the parties in this case, the Court
- (a) Notes that the Claimant was paid in regard to public holidays at the correct rate and that the employer has agreed to adjust the rate to the correct rate in regard to the outstanding annual leave ( Section 20 & Section 21 of the Act)
(b) finds that there was, on average, a one-hour per week breach of the maximum allowed and averaged working hours (Section 15 of the Act).
The Court notes that the Company has now amended its methods of keeping records.
The Court finds that there were breaches of Section 20, 21 and 15 of the Act, some of these being mitigated subsequently or of a technical nature. Having considered the nature of the breaches and all other factors, the Court increases the overall compensation figure to €650 and also orders that the Claimant be paid at the correct hourly rate for his outstanding annual leave.
The Court so decides and varies the Decision of the Rights Commissioner accordingly.
Signed on behalf of the Labour Court
Raymond McGee
26th January, 2009______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.