FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : SVETLANA KUZINSKY T/A ASSORTI (REPRESENTED BY NIALL HANDY, B.L., INSTRUCTED BY BRENDAN CAMPBELL SOLICITOR) - AND - AGNIESZKA ANASTAZJEW (REPRESENTED BY BLAZEJ NOWAK) DIVISION : Chairman: Mr McGee Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal of a Rights Commissioner's Decision r-061842-wt-08/JT.
BACKGROUND:
2. The Worker, a Ukrainian national, commenced her employment as a shop assistant on 28th September, 2006 and finished in January, 2009. It is the Worker's claim that her employer breached the Organisation of Working Time Act, 1997, regarding (1) Sunday Premium; (2) Annual Leave Payments; and (3) Public Holidays. The Employer, a Polish national, denies any breach of the Act and supports her argument with documentation which she provided to the Court.
The Claim was heard by a Rights Commissioner on the 11th July, 2008, and he issued his Decision on 24th September, 2008, as follows:-
'I have considered the submissions made by both parties. I have considered the respondents position that the claimant was paid in cash for her entitlements under this Act. I have considered this matter and on the balance of probability I do not find the claimants claim well founded and therefore it falls.'
The Claimant 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 10th October, 2008. The Court heard the appeal on the 19th February, 2009, the earliest date suitable to the parties.
WORKER'S ARGUMENTS
3. 1. The Claimant was never given a written contract of employment and she was never given a Sunday Premium payment nor any Public Holiday entitlements while she was employed by the Respondent.
2. The Claimant was left short in her annual leave payments and in fact she was only once paid in advance of her holidays for them for the full duration of her employment.
EMPLOYER'S ARGUMENTS
4. 1. The coffee shop/store opened for business in mid-2006 and due generally to a lack of funds the shop operated in a 'hand-to-mouth' fashion, for instance, wages were paid out of the cash receipts each week. However, as the business improved over time the services of an Accountant were obtained, resulting in payslips being generated from the roster charts of the Claimant and herwages were then paid by cheque.
2. In order to avoid large outlays of cash at annual holidays each year and also to cover the extra cost of Public Holidays small amounts of cash were paid to the Claimant each week in order to cover this cost. The Employer is now aware of the need to maintain records in a particular format.
DETERMINATION:
The Court has considered both the submissions made to it and the largely conflicting evidence given by the parties.
The Court finds as follows:-
Section 14: Sunday Premium:-
Based on the agreed number of Sundays worked, the rates paid and the norms for such premia in the retail grocery trade, the Court has identified a shortfall of €175 in the payments made to the Claimant.
Section 19 (Annual Leave-Payments) and Section 21 (Public Holidays):-
Based on the annual leave due, the number of Public Holidays worked and the payments recorded in respect of both liabilities, the Court has identified a shortfall of €725 in the payments made under these Sections to the Claimant vis-á-vis the statutory obligations.In addition to the identified total of €900 in such shortfalls, the Court has found that all above three Sections of the Act were breached, in addition to a breach of Section 25 of the Act (the employer's obligation to keep records), as appropriate records were not kept by the employer in a form prescribed by the Act. The Court awards the Claimant an additional €600 in respect of these breaches of the Act, this sum being deemed both proportionate and sufficiently dissuasive to act as a deterrent against future infractions.
The Court, therefore, determines that total compensation of €1500 be paid to the Claimant, upholds the appeal and overturns the Decision of the Rights Commissioner.
Signed on behalf of the Labour Court
Raymond McGee
19th March, 2009______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.