FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : MARTIN BREEN - AND - PIOTR BARAN DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal of a Rights Commissioner's Decision r-080105-wt-09/MMG
BACKGROUND:
2. The Worker began his employment as a Construction Worker on 15th August, 2005 until the termination of his employment on 30th November, 2008. The Worker sought redress for alleged breaches of the Organisation of Working Time Act 1997. The Rights Commissioner issued his Decision on 19th January 2010 and the Employer was neither present nor represented at that hearing.
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 February, 2010. The Court heard the appeal on the 28th April, 2011, the earliest date suitable to the parties.
EMPLOYEE'S ARGUMENTS:
3. 1. Annual leave entitlements were not granted, notice of overtime was not given and there was no premium payment for overtime worked.
EMPLOYER'S ARGUMENTS:
4. 1. The Worker did receive all his annual leave entitlements and he was also paid in full for all the hours he worked. The Worker did not get overtime every Saturday but if he wished he could work for one of the other subcontractors on the site.
2. The firm's Accountant has all the necessary documents to prove compliance, however, these documents are not available to be presented to the Court hearing.
DETERMINATION:
The appeal before the Court was made by the Employer against a Decision of the Rights Commissioner which found that the Complainant’s claims of breaches of the Organisation of Working Time Act, 1997 (the Act) were well-founded and ordered that the Employer should pay him a compensatory sum of €2,750. The Rights Commissioner found that the Employer had breached Sections 17 and 19 of the Act in failing to notify the Complainant of additional hours of work and in failing to provide him with paid annual leave in accordance with the provisions of the Act. The Rights Commissioner also awarded compensation for the non-payment of overtime, however, as this is not provided for under the Act, the Court overturns that part of the Decision.
Having considered the oral and written submissions of both parties the Court is satisfied that the Complainant did not receive his annual leave entitlements for the period from the commencement of the leave year on 1st April 2008 until the termination of his employment on 30th November 2008. The Court is also satisfied that he did not receive compensation for this untaken annual leave on the cesser of his employment. The Complainant was paid €360 per week.
Based on the Complainant’s own evidence, the Court is satisfied that overtime was worked on a regular basis and that the Complainant was fully aware of his requirement to work such overtime on an ongoing basis. Accordingly, the Court is of the view that there was no breach of Section 17 of the Act.
The Court finds that the Complainant had an outstanding entitlement to almost thirteen- and-a-half days and accordingly determines that the Employer should pay the Complainant the sum of €1,200.00 and this sum includes a compensatory award.
The Court varies the Rights Commissioner's Decision accordingly. The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
18th May, 2011______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.