FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : MICHAEL CONLON - AND - JURIS KRUGLIJS (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Ms Ni Mhurchu |
1. Appeal of Rights Commissioner's Decision R-069612-WT-08/EH
BACKGROUND:
2. This case is an appeal by the worker of Rights Commisioners Recommendation R-069612-WT-08/EH. The issue in dispute relates to the worker allegedly working hours in excess of the statutory maximum (average of 48 hours per week) and the subsequent incorrect payment of holiday pay.
It is also claimed that the worker did not receive proper rest breaks while in the employment of the Company.
The matter was referred to a Rights Commissioner for investigation and his Decision issued on 4th March, 2009. In his Decision, the Rights Commissioner awarded the Claimant €1000 compensation in relation to the breaches.
On 16th March, 2009 the worker appealed the Rights Commissioner's Decision in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 23rd April, 2009.
The Respondent was unable to attend the hearing but did submit an e-mail in relation to the case.
WORKER'S ARGUMENTS:
3 1 The Rights Commissioner did not award adequate compensation. The Appellant worked hours well in excess of the statutory maximum and did not receive the appropriate holiday pay calculations, nor did he receive the appropriate rest breaks while working the additional hours.
EMPLOYER'S ARGUMENTS:
4 1 The worker requested that he be given as many additional hours of work as possible. There were no intentional breaches of the Act in this regard and all breaks could be taken if desired.
DETERMINATION:
This is a appeal by Juris Kruglijs (the Claimant) against the decision of a Right Commissioner in his claim against his former employer, Michael Conlon (the Respondent) under the Organisation of Working Time Act 1997. The Rights Commissioner awarded the Claimant compensation in the amount of €1,000 for various contraventions of the Act. The Claimant appealed against the quantum of the award.
The Respondent, having been notified of the date, time and place of the appeal failed to attend the hearing or to be represented. The Respondent did, however, communicate with the Court by e-mail in relation to the case.
Having heard the submissions advanced on behalf of the Claimant the Court is satisfied that the Respondent employed him in activity that comes within the scope of the Registered Employment Agreement for the Construction Industry. The rate at which he was paid in respect of holidays was some €5 less per hour than the appropriate rate under that Agreement. The Claimant’s Solicitor estimated the amount of arrears owing to the Claimant in respect of holiday pay at €750 and the Court accepts that amount as being correct.
The Rights Commissioner found that the Claimant had worked in excess of the maximum number of weekly hours permitted under the Act. The Commissioner also found that the Claimant had not been provided with adequate breaks.
The Court is, however, satisfied that the Claimant asked to be provided with extended overtime and he clearly accepted the overtime payments in respect of the additional hours worked. While the Court cannot and does not condone any contravention of the Act, there was collusion between the parties in any contravention which occurred and this must be taken into account.
In all the circumstances of the case that the Court does not see any equitable basis upon which it could increase the quantum of compensation awarded by the Rights Commissioner.
Accordingly the decision of the Rights Commissioner is affirmed and the appeal disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
13th May 2009______________________
AHChairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.