FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : PAPSTA LTD (REPRESENTED BY PHILIP LEE) - AND - RICHARD DILLON DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Appeal against a Rights Commissioner’S Decision R-073939-Wt-08/Jc
BACKGROUND:
2. The case concerns an appeal of a Rights Commissioner's Decision No. R-079745-IR-09/EH. The worker commenced employment with the Company in 2004. It is the worker's claim that he worked a 72 hour shift over three days per week and recieved no official rest breaks. The Company accepts that breaches of the Act did occur but with mitigating circumstances arising from the unusual nature of the work and the flexibility of the job. It is contend that the compensation awarded to the worker is excessive and unfair.
The Company 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 26th August, 2009. The Court heard the appeal on 16th April, the earliest date suitable to both parties.
DETERMINATION:
Background
This is an appeal by PAPSTA Ltd (the respondent) against the decision of a Rights Commissioner in a claim by Mr Richard Dillon (the Claimant) under the Organisation of Working Time Act 1997 (the Act). The Rights Commissioner found that the Claimant's weekly working hours greatly exceeded the maximum permitted by the Act. She also found that the Claimant was not afforded adequate daily rest or adequate breaks. She awarded compensation in the amount of €7,500. The Respondent accepts liability for contraventions of the Act in relation to the Claimant but claims that the award made by the Rights Commissioner is excessive.
Position of the Parties
The Respondent contended that such breaches of the Act as did occur were technical in nature; that they were based on their mistaken understanding of the law and that the Claimant made no complaint concerning his working time before presenting a complaint to the Rights Commissioner.
The Claimant contends that he sought to rectify the position of which he complained in direct discussion with the Respondent. He claims, however, that for a period of over two years before he made the reference to the Rights Commissioner the Respondent failed to address any of his concerns.
Conclusion of the Court
It is noted that the Claimant was regularly rostered to work 24 hour shifts over 3 days without a break. His normal weekly hours were 72, which he spent at his place of work without a break.
The Act implements in domestic law Directive 93/104/EC on the Organisation of Working Time. The limitations on working time which the Act imposes are for health and safety reasons and the right to adequate rest has been characterised as a fundamental social right in European Law (see comments of Advocate General Tizzano inR v Secretary of State for trade and Industry, ex parte Broadcasting, Entertainment Cinematography and Theatre Union[2001] IRLR 559 which were quoted with approval by Lavin J inRoyal Liver V Macken,High Court, Unreported, 15th November 2002). InVon Colson & Kamann V Land Nordrhein - WestfalenECR 1891 the ECJ has made it clear that where such a right is infringed the judicial redress provided should not only compensate for economic loss sustained but must provide a real deterrent against future infractions.
In the Court's view the infringement of such an important right cannot be described as merely technical in nature, nor can the Respondent lack of knowledge of its statutory duty in respect to a health and safety matter be accepted as a mitigating factor.
Determination
In all the circumstances the Court is satisfied that the award made by the Rights Commissioner is appropriate. Accordingly the Decision of the Rights Commissioner is affirmed and the appeal is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
6th May, 2010______________________
DNChairman
NOTE
Enquiries concerning this Determination should be addressed to David P Noonan, Court Secretary.