FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : JAROSLAV SANDOR T/A SLOVENSKA RESTAURANT - AND - DUSCAN LIPCAK (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appealing against a Rights Commissioner's Decision r-084872-wt-09/JOC.
BACKGROUND:
2. The Employee worked in the kitchen area of the restaurant from 5th November 2008 until 26th July 2009. The Employee claims that he was not paid a Sunday premium, that he was not paid for public holidays nor was he paid his full annual leave entitlements. The Employer disputes part of the claim but does not have any records available to confirm his position. The role to which the Employee was assigned is also disputed, the Employee states that he was recruited as a Chef, while the Employer states that he was employed as a cleaner in the kitchen. The Rights Commissioner found in favour of the Employee and awarded him the sum of €3,500 in compensation.
The Employer 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 15th September, 2010. The Court heard the appeal on the 23rd March, 2011 the earliest date suitable to the parties.
UNION'S ARGUMENTS:
3. 1. There is no doubt that the Employer breached three Sections of the Organisation of Working Time Act and the consequences of this on the Employee were losses of income in the region of €2,873.80.
2. There are no grounds to justify this appeal and we respectfully request that the Rights Commissioner' Decision be affirmed.
EMPLOYER'S ARGUMENTS:
4. 1. It is conceded that here may be some small sum owed to the Employee mainly due to his hourly rate of pay, whatever this amount is when calculated, he will be reimbursed immediately.
2. Due to family and financial commitments I am not in a position to pay him the amount that the Rights Commissioner awarded.
DETERMINATION:
The Complainant brought a complaint before a Rights Commissioner pursuant to the Organisation of Working Time Act 1997 (the Act) alleging breaches of Sections 14, 19 and 21. The Rights Commissioner upheld the complaints and awarded the sum of
€3,500.00.The Employer appealed the Decision.
The Employer did not attend before the Rights Commissioner.
For ease of reference the parties are referred to as they were at first instance. Hence Mr. Duscan Lipcak is referred to as “the Complainant” and Jaroslav Sandor t/a Slovenska Restaurant is referred to as “the Respondent”.
The Complainant submitted a claim under the Act to the Rights Commissioner on 8th October 2009.
Background
The Complainant was employed by the Respondent from 5th November 2008 until 26th July 2009. The Respondent told the Court that the Complainant was employed to clean and wash up in the kitchen; he did some cooking initially, however, as his cooking was not up to standard, he ceased any cooking duties after the first couple of weeks.He was paid an hourly rate of €8.65. This was disputed by the Complainant, who argued that he was involved in food preparation and cooking.
Section 14 Claim
Ms. Ger Malone, SIPTU, on behalf of the Complainant, submitted that the Complainant had worked most but not all Sundays in the relevant period covered by the claim. She submitted that the appropriate Sunday premium was double time in accordance with the terms of the Catering Employment Regulation Order (ERO) S.I. 142 of 2008. She further submitted that the appropriate rate under the ERO was the Short Order Fast Service Cook/General Worker rate €9.31per hour whereas the Respondent submitted that the appropriate rate was €8.65 per hour.
Mr. Sandor, the Respondent, submitted that the Complainant had worked for three Sundays only, however, he was unable to support this contention with records in the prescribed manner contrary to Section 25 of the Act.
Section 25 (4) of the Act provides
- “Without prejudice to subsection (3, where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.”
- 14.(1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely—
- ( a ) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or
( b ) by otherwise increasing the employee's rate of pay by such an amount as is reasonable having regard to all the circumstances, or
( c ) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or
( d ) by a combination of two or more of the means referred to in the preceding paragraphs.
(3) For the purposes of proceedings under Part IV before a rights commissioner or the Labour Court in relation to a complaint that this section has not been complied with in relation to an employee to whom this subsection applies ("the first-mentioned employee"), the value or the minimum value of the compensation that a collective agreement for the time being specifies shall be provided to a comparable employee in respect of his or her being required to work on a Sunday shall be regarded as the value of compensation to be provided under this section to the first-mentioned employee that is reasonable having regard to all the circumstances:- Provided that if each of 2 or more collective agreements for the time being specifies the value or the minimum value of the compensation to be provided to a comparable employee to whom the agreement relates in respect of his or her being required to work on a Sunday and the said values or minimum values are not the same whichever of the said values or minimum values is the less shall be regarded, for the purposes aforesaid, as the value of compensation to be provided under this section to the first-mentioned employee that is reasonable having regard to all the circumstances.
(5) In Subsection (3) "comparable employee" means an employee who is employed to do, under similar circumstances, identical or similar work in the industry or sector of employment concerned to that which the first-mentioned employee in Subsection (3) is employed to do.
(6) References in this section to a value or minimum value of compensation that is specified by a collective agreement shall be construed as including references to a value or minimum value of compensation that may be determined in accordance with a formula or procedures specified by the agreement (being a formula or procedures which, in the case of proceedings referred to in Subsection (3) before a Rights Commissioner or the Labour Court, can be readily applied or followed by the Rights Commissioner or the Labour Court for the purpose of the proceedings). - ( a ) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or
InDuesbury Limited t/a Old Ground Ennis v Ms. Mary FrostDWT1032, this Court found that the effect of the ERO is that
- “where a rate of pay or a condition of employment in the contract of employment of a worker to whom an ERO relates is less favourable than the corresponding term in the ERO, the ERO term is incorporated in the contract in substitution for the contractual term”
The Court is satisfied that the Respondent did contravene the Act in the manner alleged. However, it appears that some of the contravention relied upon occurred outside the limitation period prescribed by Section 27(4) of the Act (they occurred more than six months before the presentation of the complaint). To that extent they cannot be taken into account in measuring the quantum of compensation which is fair and reasonable in the circumstances.
In the absence of records to dispute the Complainant’s contention that he worked most but not all Sundays in the relevant period, the Court decides that he should be entitled to benefit from nine Sundays in the period covered by ERO S.I. 142 of 2008 and three Sundays in the period covered by ERO S.I. 217 of 2009. Therefore, the Court finds that he has an outstanding entitlement to €505.05 in respect of his entitlements under Section 14 of the Act.
Section 19 Claim
Ms. Malone submitted that the Complainant had worked in the region of 1007 hours during the period of his employment and consequently was entitled to 8% of the hours worked as his annual leave entitlement. She accepted that he had been paid 26 hours' annual leave in May 2009 and accordingly held that he had an outstanding entitlement to 54.56 hours.
Mr. Sandor told the Court that in addition to the 26 hours' annual leave payment in May 2009, he had paid for a flight ticket on behalf of the Complainant, to the value of
€128.17.
Section 20(1) provides that, subject to certain conditions, it is for the employer to determine the time at which annual leave is granted to an employee provided the leave is granted within the leave year to which it relates or, with the consent of the employee, within the six months thereafter. A leave year is defined in Section 2 (1) as the year beginning on the first day of April.
The Complainant made his complaint on 8th October 2009, therefore, his claim is based on the leave year which began on the 1st April, 2009, the Court therefore finds that the Complainant’s complaint in respect of that leave year is in time and any claim in respect of the leave year ending 31st March, 2009, is out of time.
The Court was provided with details of the agreed hours worked each week in that period and finds that he worked a total of almost 400 hours and accordingly was entitled to 8% of those hours as annual leave. As it is agreed between the parties that he has already received 26 hours’ annual leave entitlement for the leave year beginning on the 1st April, 2009, therefore, he has an outstanding entitlement to six hours’ annual leave pay, which the Court quantifies at €52.00.
Section 21 Claim
Ms. Malone submitted that the Complainant had an outstanding entitlement to three public holidays i.e. 13th April Easter Monday; 4th May and 1st June 2009. Mr. Sandor told the Court that the Complainant received a paid day off after each public holiday, however, he was unable to support this contention with records in the prescribed manner contrary to Section 25 of the Act.
The calculation of pay for annual leave and public holidays is governed by the Organisation of Working Time (Determination of Pay) Regulations 1997, S.I. 475 of 1997 (the Regulations). Regulation 3(2) prescribes the formula for the calculation of the rate payable in respect of annual leave in the case of an employee whose pay is calculated by reference to a fixed hourly rate.
The rate payable in respect of a public holiday is calculated by the application of a formula which is prescribed by Regulation 5. Regulation 5(1)(a) applies where a public holiday falls on a day on which the employee concerned normally works. This is the applicable Regulation in the case of the Claimant. It provides: -
- 5. (1) If the employee concerned works or is normally required to work during any part of the day which is a public holiday, then—
- ( a ) in case the employee's pay is calculated wholly by reference to any of the matters referred to in Regulation 3(2) of these Regulations, the relevant rate in respect of that public holiday shall be the sum that is equal to the sum (including any regular bonus or allowance the amount of which does not vary in relation to the work done by the employee but excluding any pay for overtime) paid to the employee in respect of the normal daily hours last worked by him or her before that public holiday,
- ( a ) in case the employee's pay is calculated wholly by reference to any of the matters referred to in Regulation 3(2) of these Regulations, the relevant rate in respect of that public holiday shall be the sum that is equal to the sum (including any regular bonus or allowance the amount of which does not vary in relation to the work done by the employee but excluding any pay for overtime) paid to the employee in respect of the normal daily hours last worked by him or her before that public holiday,
The Court is required to follow the decision of the ECJ inVon Colson andKamann[1984] ECR 1891. Here the ECJ held that the sanction for breaches of Community rights must be effective, proportionate and dissuasive. This means that the compensation awarded must fully compensate the complainant for the economic loss which he or she sustained as a result of the breach of his or her Community rights. It must also contain an element that reflects the gravity of the infringement and acts as a disincentive against future infractions.
The Court has considered the Respondent's appeal of the Rights Commissioner's Decision, the Court awards a sum of €800.00 for the breaches of the Act, this sum includes an element of compensation which the Court is satisfied in all the circumstances of this particular case, meets the criteria enunciated by the ECJ inVon Colson.
The Decision of the Rights Commissioner is varied accordingly.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
11th April, 2011______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.