FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : GRIFFIN RETAIL - AND - KARIM AMIMER (REPRESENTED BY RODERICK MAGUIRE INSTRUCTED BY JOYCE & MARTIN SOLICITORS) DIVISION : Chairman: Mr McGee Employer Member: Ms Doyle Worker Member: Mr Nash |
1. Appealing Against A Rights Commissioner's Decision R-066076-Wt-08/Eh
BACKGROUND:
2. The Worker concerned was a Store Manger in two 24-hour Londis shops on College Green from 23rd June 2006 until 13th May 2008. He had previously worked for the Managing Director of the Company. He was initially appointed Store Manager in one shop and as he was successful in that role he was given the additional management of a second store. His salary was increased following the additional management position.
The Worker claims that he was required to work excessive hours. He stated that he worked various shifts, as determined by himself, and rarely finished on time. He also claims that he was not given proper support in the role and did not receive training for the role. The Worker also stated that he worked every public holiday and was not paid for these days. His contract stated that he should work five out of nine public holidays.
The Company refutes the claims of the Worker.
The claim was referred to a Rights Commissioner for investigation. His decision issued on the 8th January 2009, in which he found that the claim by the Worker was well founded. He awarded the Worker €4,500 in compensation in respect of breaches of the Act regarding working hours and public holidays.
The Company appealed the Rights Commissioner's decision to the Labour Court on the 18th February 2009, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 13th May, 2009.
COMPANY'S ARGUMENTS:
3. 1. The Company maintains that the Worker did not work more than 48 hours per week and that he was in charge of rostering his own hours.
2. The Company maintains that the Worker was well aware that the Company operated a system whereby salaried staff worked five out of nine public holidays per year and that payment for these days was part of his normal salary.
3. The Company stated that the Worker had never made any complaint in relation to these matters until ten days before he tendered his resignation.
WORKER'S ARGUMENTS:
4. 1.The Worker contends that he was required to work excessive hours and rarely finished his shifts in time. He maintains that due to the pressures of work he was forced to remain in work until anywhere between 6 p.m.and 9 p.m. each evening.
2. The Worker maintains that he was required to work every public holiday and was not compensated for so doing.
3. The Worker is seeking an increased award in compensation pursuant to the provisions of the Act which is proportionate, effective and dissuasive and equitable in all of the circumstances.
DETERMINATION:
Having considered the oral and written presentation of the parties, the Court considers that, while the Claimant could set his own rosters, his hours of work were not entirely within his control and on the balance of probabilities, he worked in excess of an average of 48 hours per week, in breach of S.15 of the Act.
The Company has admitted that there was a breach of S. 21 of the Act in regard to payment for public holidays.
Under the principles laid down by the ECJ in the case of "Van Colson Kamann v Land Nordrhein-Westfalen" [1984] ECR 1891, where an individual right is infringed, the judicial redress provided should not only compensate for the claimant's economic loss but must provide a real deterrent against future infractions.
Keeping this principle in mind, the Court upholds the decision of the Rights Commissioner and dismisses the appeal.
Signed on behalf of the Labour Court
Raymond McGee
15th May, 2009______________________
MG.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.