FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : PRINCIPAL CONSTRUCTION SERVICES LIMITED - AND - JEVGENUS NIKITINS (REPRESENTED BY RICHARD GROGAN & ASSOCIATES SOLICITORS) DIVISION : Chairman: Mr McGee Employer Member: Mr Doherty Worker Member: Ms Ni Mhurchu |
1. Appeal of Rights Commissioner's Decision r-058030-wt-07/RG.
BACKGROUND:
2. The Worker a foreign national was employed as a Grade 'D' Operative from 11th November, 2005 until 31st October, 2007 when his employment was terminated. After he ceased his employment the Claimant lodged a complaint with the Rights Commissioner alleging that his ex-employer was in breach of Section 12 and Section 17 of the Organisation of Working Time Act 1997. On the 30th October, 2008 the Rights Commissioner issued her Decision as follows:
"On the uncontested evidence of the Claimant, I declare the complaint is well founded. I order the employer to pay the claimant compensation of €1000.00 within six weeks of the date of this decision."
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 4th December, 2008. The Court heard the appeal on the 6th March, 2009, the earliest date suitable to the parties.
DETERMINATION:
The Court has noted that the Claimant agreed that he received his rest periods and that no breach of Section 12 of the Act occurred.
With regard to Section 17 of the Act, the Court, having found conflicting evidence on the incidence of notice for overtime working, prefers the evidence given by the Company.
The Court notes, however, that records were not kept in the prescribed form as per Section 25 of the Act.
In all of the circumstances, the Court upholds the appeal under Section 12 and 17 of the Act, but finds that records were not kept in the prescribed form as per Section 25 of the Act.
The Court varies the compensation to €500 to reflect this breach.
The Court so determines.
Signed on behalf of the Labour Court
Raymond McGee
23rd March, 2009.______________________
JF.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.