FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : RIANNA CONSTRUCTION LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - MR WOJCIECH NOWAK (REPRESENTED BY POLISH CONSULTANCY ENTERPRISE) DIVISION : Chairman: Mr McGee Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Appeal against a Rights Commissioner's Decision R-061501-Wt-08/Eh
BACKGROUND:
2. The worker was employed at the Company from April 2007 to February 2008 as a General Operative. The Union Claim before the Rights Commissioner was that the worker was not paid the appropriate rate as set out in the Registered Employment Agreement relating to the Construction Industry. It was also claimed he did not receive his Public Holiday or Annual Leave entitlement during his employment.
The Company position is that the worker did receive the proper rate of pay under the Registered Employment Agreement. The Company does owe outstanding Annual Leave and Public Holidays to the worker and is willing to make immediate payment in respect of outstanding leave.
The dispute was referred to a Rights Commissioner for investigation. His Decision issued on the 30th July, 2008 and awarded €3,500 compensation to the worker on the basis of his uncontested evidence relating to non-payment of the appropriate rate of pay as per the Registered Employment Agreement and outstanding entitlements relating to Annual Leave and Public Holidays.
The employer 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 29th August, 2008. The Court heard the appeal on the 4th December, 2008 the earliest date suitable to parties.
UNION'S ARGUMENTS:
3. 1 The worker did not receive his annual leave entitlement nor his Public Holiday entitlement during his employment with the Company.
2 The worker was not paid the appropriate rate as set out in the Registered Employment Agreement for the Construction Industry.
COMPANY'S ARGUMENTS:
4. 1 The worker is entitled to 37 hours outstanding Annual Leave for 2007 and 11 hours for 2008. He is also entitled to 2 outstanding Public Holidays for 2007 and 1 for 2008. The Company are prepared to make payment of outstanding monies to the worker with immediate effect.
2 The worker was paid the appropriate rate as set out in theRegistered Employment Agreement for the Construction Industry.
DETERMINATION:
It was accepted by the employer at the hearing that breaches of Section 19 and Section 21 of the Act had occurred.
The Court accepts that the employee was paid the appropiate rate for the job.
Calculated at the rate of €14.52 per hour, the annual leave accounts for an amount owing of €537.24 and the public holidays for an amount owing of €232.32, making a total of €769.56.
The Court also determines that compensation for the above breaches of the Act and for failure to keep records should be awarded in the amount of €1230.44.
The Court thereby determines that the employer pay compensation in total to the worker in the amount of €2000, and varies the Rights Commissioner's Decision accordingly.
Signed on behalf of the Labour Court
Raymond McGee
27th January, 2009______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to David P Noonan, Court Secretary.