FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : SEAN MCCABE T/A ROOFCRAFT - AND - MR TUDOR FRUMOSA (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioner's Decision r-075269-wt-09/EH
BACKGROUND:
2. The Claimant was employed as a Roofer for the Respondent from 25th October, 2006 until December, 2008. He claims that he was not paid the correct hourly rate for his annual leave and Public Holiday entitlements.
The case was heard by a Rights Commissioner who decided that the case was well founded and awarded a sum in compensation to the Claimant.
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 21st April, 2010. The Court heard the appeal on the 29th July, 2010.
CLAIMANT'S ARGUMENTS:
3. 1. The quantum of the Rights Commissioner's award could not be regarded as persuasive, dissuasive nor proportioned in relation to the breach.
2. A significantly higher sum should have been awarded by the Rights Commissioner to ensure that the Employer pay the appropriate rate in future to other Employees in accordance with the Act.
RESPONDENT'S ARGUMENTS:
4. 1. It is accepted that the Claimant is covered by the Construction Industry's Registered Employment Agreement (REA), however, the Claimant is not a qualified Roofer and the hourly rate paid to him reflected this fact. At no point during his term of employment did the Claimant state that he was unhappy about his rate of pay.
2. The Respondent is not in a financial position to pay the sum awarded in compensation and did not appeal the Rights Commissioner's Decision.
DETERMINATION:
This is an appeal against the quantum of compensation awarded by the Rights Commissioner in the Claimant’s claim against the Respondent under the Organisation of Working Time Act 1997. It is the Claimant’s case that he was underpaid in respect of 10 days annual leave and 4 public holidays. The Rights Commissioner found that the claim was well founded and awarded the Claimant compensation in the amount of €250.
In a separate claim under the Payment of Wages Act 1991 the Rights Commissioner found that the Claimant had been underpaid by €2.97 per hour relative to the rate to which he was entitled under the REA for the Construction Industry. He held that the Claimant should have been paid in respect to annual leave and public holidays at the rate to which he was entitled to be paid under the REA.
The Respondent did not appeal against that Decision of the Rights Commissioner.
The Claimant now contends that the economic value of the underpayment in respect to holidays is €336 rather than the amount awarded by the Rights Commissioner. The Claimant also contends that a general compensatory amount should be added to the award.
Determination
The Court accepts that the pecuniary value of the underpayment in respect to holidays is €336. The Court does not consider this to be an appropriate case in which to add an award of general compensation.
Accordingly the award of the Rights Commissioner is varied to one of €336.
To that extent the appeal is allowed.
Signed on behalf of the Labour Court
Kevin Duffy
21st August, 2010______________________
JFChairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.