FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : SEAN FUREY (REPRESENTED BY MCDONNELL MAHER & CO. SOLICITORS) - AND - MATTHEW LAFFAN DIVISION : Chairman: Mr Hayes Employer Member: Ms Doyle Worker Member: Mr Shanahan |
1. Appealing against a Rights Commissioner's Decision R-091864-WT-10/TB
BACKGROUND:
2. The complainant was employed as a barman for the employer from December, 2003, to February, 2010. For a number of years the complainant worked full time, often not taking his annual leave and being paid instead, e.g. working 52 weeks per year and being paid for 54 weeks. The respondent maintains that he tried to get the complainant to take his annual leave but that he refused to do so. In the latter stage of his employment the complainant's hours were reduced and he left in 2010 claiming constructive dismissal. He claimed that he was owed for annual leave and Public Holidays and referred his case to a Rights Commissioner whose recommendation was as follows:
"I uphold his complaint that he is due payment for one weeks holiday and the 4 public holidays i.e. October '09, Christmas '09, St. Stephen's Day '09, and New Year's Day '09.
I require the employer to pay him €500 in compensation."
The complainant believed that the compensation should have been greater and appealed the recommendation to the Labour Court on the 6th October, 2010, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 3rd November, 2011, in Kilkenny. The following is the Court's determination:
DETERMINATION:
The case comes before the Court pursuant to Section 28(1) of the Organisation of Working Time Act 1997 (the Act).
The Complainant, Mr Laffan, who won his case at first instance, is appealing against the amount of compensation awarded to him by the Rights Commissioner c.f. r-091864-wt-10/TB.
Background:
The Complainant worked as a barman for the Respondent from 16th December 2003 until 8th February 2010. He claims that, contrary to the provisions of Section 19 of the Act, he did not avail of his holiday entitlements for the entire duration of his employment and that his employer facilitated him in so doing.
The Respondent submitted that the Complainant refused to take annual leave despite being pressed to do so preferring instead to take compensation by way of an additional four weeks' pay per annum.
The Rights Commissioner investigated the Complaint, decided that it was well founded and awarded the Complainant €500 compensation for the breach of his statutory entitlements.
Position of the Parties
The Complainant's Case
The Complainant appealed to the Court on the grounds that the award simply compensated him for his economic loss and did not make any award for the breach of his statutory entitlements. He referred the Court to the decision of the ECJ in Von Colson & Kamann v Land Nordheim-Westfalen (1984) ECR 1891 ECJ. He contended that this Court, in addition to awarding compensation for economic loss suffered, must also set it at such a level as to provide a real deterrent against future breaks of the law by the Respondent. Accordingly, he submitted that the award of €500 was inadequate and should be increased.
The Respondent's Case
The Respondent admitted that he had facilitated the Complainant's desire to take additional pay instead of holidays each year. He acknowledged that this was contrary to the provisions of Section 19 of the Act. He submitted that he had amended his procedures, was now fully complaint with the law, was maintaining records as required by Section 25 of the Act and accepted the Rights Commissioner's award as fair and reasonable in all the circumstances of the case.
Findings of the Court:
The Court notes that there is no dispute between the parties regarding the facts of the case. The amount of compensation awarded by the Rights Commissioner in the only issue in dispute.
The Court is satisfied that the Respondent has addressed the shortcomings in his procedures and following an inspection of his records by NERA is now largely compliant with the provisions of the Act. The Court also notes that the Respondent was acting at the behest of the Complainant when he facilitated him with additional pay rather than compel him to take holidays. However, it is settled law that the obligation to comply with the Act lies with the employer. Pressure from an employee to act contrary to the law does not excuse a breach of the Act. Moreover, the Court takes the view that the Complainant's statutory entitlement to annual leave is an important health and safety measure that is designed to protect the interests of both the individual concerned and all of those working with him whose own safety might be put at risk. Accordingly, any failure to implement the provisions of the Act must be viewed seriously by this Court.
Determination:
Accordingly, the Court finds that the complaint is well founded and requires the respondent to pay the Complainant the sum of €1,000 as compensation for both his economic loss, the denial of his statutory entitlements and as a deterrent to any further breaches of the Act.
The decision of the Rights Commissioner is varied accordingly.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
15th November, 2011______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.