FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : EUROPA PLUS LIMITED (REPRESENTED BY O ' CONNOR & BERGIN SOLICITORS) - AND - DANGOULE KLUONYTE (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Mr Nash |
1. Appeal Against A Rights Commissioner Decision R-073240-Wt-08/Sr
BACKGROUND:
2. The Worker was employed as a cleaner with the Company from May 2007 to August 2008. It is the Worker's claim that she did not receive the appropriate rest breaks during her employment as provided for under the Organisation of Working Time Act, 1997. A complaint on behalf of the Worker was brought before a Rights Commissioner. The Rights Commissioner's Decision issued on the 23rd June, 2009 finding in favour of the Worker
On the 31st July, 2009 the Company appealed the Decision to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 16th October, 2009. The following is the Court's Determination:
DETERMINATION:
Ms Dangoule Kluonyte (the Claimant) brought a complaint before the Rights Commissioner alleging that her former employer, Europa Plus Ltd (the Respondent), contravened Section 12 of the Organisation of Working Time Act, 1997 (the Act) by failing to provide her with adequate rest intervals at work.
The Rights Commissioner found that the complaint was well-founded and awarded the Claimant compensation in the amount of €6,500. The Respondent appealed this to this Court.
The Claimant contends that she was required to work six hours per day and was not provided with a break. The Respondent accepts that it did not keep records in the form required by Section 25 of the Act. It was further submitted that the Claimant had opportunities to take breaks during the course of her normal working day. However the Respondent was not in a position to adduce evidence to show if or when the Claimant actually obtained the requisite breaks.
Since no records were maintained in accordance with Section 25(1) of the Act the Respondent bears the onus of proving that the Claimant received the breaks to which she was entitled under Section 12 of the Act. The Respondent could not tender any evidence to discharge that onus. Accordingly, the liability of the Respondent cannot be an issue in this appeal and the only matter for consideration is the appropriateness of the quantum of compensation awarded by the Rights Commissioner.
The Respondent submitted that the award was excessive in all the circumstances of the case. The Claimant submitted that the award was appropriate and was based on sound legal principles governing the measurement of quantum in cases such as this.
Conclusions of the Court
The Claimant suffered no pecuniary loss in consequences of the contravention of which she complained. In the well known case of Von Colson & Kamann v Land Nordrhein - Westfalen [1984] ECR 1891 the ECJ has made it clear that where a right which is derived from the law of the Community is infringed the judicial redress provided should not only compensate for economic loss but must provide a real deterrent against future infractions. However the Court also pointed out that the redress must be proportionate and appropriate.
Having regard to all the circumstances of the instant case the Court believes that the award made by the Rights Commissioner is disproportionate to the gravity of the contravention found to have occurred. The Court is satisfied that an award of €3,750 is appropriate and better meets the requirements of proportionality.
Determination
It is the determination of the Court that the Decision of the Rights Commissioner be amended to provide that the Claimant be awarded compensation in the amount of €3,750. To that extent the within appeal is allowed.
Signed on behalf of the Labour Court
Kevin Duffy
5th November, 2009______________________
DNChairman
NOTE
Enquiries concerning this Determination should be addressed to David P Noonan, Court Secretary.