FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : STEEL INDUSTRIES RATHCOOLE LIMITED - AND - ZBIGNIEW PACHUTA (REPRESENTED BY POLISH CONSULTANCY ENTERPRISE) DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Ms Ni Mhurchu |
1. Appealing against Rights Commissioner's Decision No: r-084792-wt-09/GC
BACKGROUND:
2. The Complainant worked for the Respondent Company as a welder/metal fabricator from 16 February 2009 until 7 September 2009. His rate of pay was initially €10.25 per hour. In March 2009 this was reduced to €9.13 without his consent. The Complainant successfully pursued a complaint against the Respondent to the Rights Commissioner pursuant to the provisions of the Payment of Wages Act. He also initiated a number of complaints against the Respondent pursuant to the Organisation of Working Time Act 1997 (the Act). He specifically complained that the Respondent had acted contrary to the provisions of Sections 17, 19 and 21 of the Act. Moreover he submitted that he had not received any annual leave in respect of the period February to March 2009.
The Complainant’s employment terminated on 7th September 2009. He submitted a compliant to the Rights Commissioner on 12th October 2009. He sought an extension of time pursuant to Section 25 of the Act on the grounds that he is not a native of this country, has poor English and was unfamiliar with the Irish legal system. Furthermore the claim was 12 days outside the six month time limit which he said indicated that he acted immediately he became aware of the correct procedures to be followed.The Rights Commissioner investigated the complaint and found against the Complainant under all headings.The Complainant appealed the Rights Commissioner Decisions’ to the Labour Court pursuant to Section 28(1) of the Act. A Labour Court hearing took place on 23rd September, 2010. The Employer was notified of the date and time of the hearing but did not attend or correspond with the Court in relation to the appeal.
WORKER'S ARGUMENTS:
Extension of time ( Section 25) : -
The Complainant sought an extension of time on the grounds that he delay was of a very short duration and arose out of the fact that he was a foreign national with little command of the english language and was unfamiliar with the procedures and processes of the Irish legal system. He submitted that he acted immediately upon becoming aware of the proper procedures to be followed.
Annual Leave for the period February/ March 2009.
The Complainant said he did not receive the annual leave to which he was entitled in respect of the period February – March 2009. He measured this at three days leave pursuant to the provisions of the Act.
Notice of Overtime Working (Section 17) : -
The Claimant said that contrary to Section 17 of the Act, he was not notified of the days on which he was required to perform “additional hours” at least 24 hours before the day on which he was required to perform such work.
Calculation of Holiday Pay (Section 19): -
The Claimant submitted that his holiday entitlement for 2009 was based on the unlawfully reduced rate of pay of €9.13 per hour rather than the €10.25 to which he was entitled. Accordingly he was underpaid in the amount of €113.00
Calculation of Public Holiday Pay (Section 21) : -
The Claimant stated that he was paid at the reduced rate of €9.13 per hour in respect of the May, June and August public holidays in 2009. He submitted that this reduction in pay had
been deemed to be contrary to the provisions of the Payment of Wages Act and accordingly he was entitled to the shortfall in the amount he was paid which totalled €33.90.
DETERMINATION:
Extension of time ( Section 25) :
The Court grants the extension of time on the grounds that the circumstances of the Complainant and the short delay that occurred before the claim was lodged with the Rights Commissioner constitute reasonable grounds for so doing.
Annual Leave for the period February/ March 2009:
On the uncontested evidence of the Complainant the Court upholds the claim for three days annual leave in respect of the period February – March 2009.
Calculation of Holiday Pay (Section 19) and Calculation of Public Holiday Pay (Section 21):
The Complaints made pursuant to Sections 19 and 21 of the Act are rejected as they fell to be dealt with under the terms of the Payment of Wages Act under which statute the Complainant successfully prosecuted a complaint and was compensated in respect of the unlawful deductions in wages made by the Respondent.
Notice of Overtime Working (Section 17) :
The Court upholds the complaint made pursuant to Section 17 of the Act.
Based on the above findings the Court awards the Complainant the sum of €250 . The Rights Commissioner’s decision is accordingly set aside.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
15th November 2010______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.