FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : NOEL RECRUITMENT - AND - MR MIHALY KOCSOR DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner Decision No: r-105136-wt-11/DI
BACKGROUND:
2. This is an appeal by the worker of Rights Commissioner's Decision No: r-105136-wt-11/DI. The issue concerns alleged breaches of the Organisation of Working Time Act, 1997. The matter was referred to a Rights Commissioner for investigation. His decision issued on the 12th October 2011 and decided that the complaints were well founded. He awarded €1,100 in compensation to include €129.33 in respect of economic loss for the underpayment for the three public holidays.
On the 18th November 2011, the worker appealed the Rights Commissioner's Decision in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 1st March, 2012
DETERMINATION:
Background
The facts of the case are not in dispute. The respondent is an employment agency for which the complainant worked between September 2008 and July 2011. The complainant complained to the Rights Commissioner that, contrary to the provisions of S15 of the Act, he had been permitted to consistently work in excess of 48 hours per week in the relevant period. He further submitted that contrary to the provisions of Section 21 of the Act he had been under paid in respect of three public holidays, December 25 and 26th2010 and January 1st2011.
The Rights Commissioner decided that the complaints were well founded and awarded the complainant €1,100 compensation.
The complainant appealed the quantum awarded by the Rights Commissioner to the Labour Court.
Position of the complainant
The complainant submits that for 70% of the time he was employed by the respondent he was permitted/required to work in excess of 48 hours per week. He submits that this is contrary to the provisions of Section 15 of the Act and is a serious health and safety issue with consequences for both himself and his fellow workers.
He submits that an award of €750 compensation for such a persistent breach of the Act is not proportionate in all the circumstances of this case.
He further submits that, contrary to the provisions of Section 21 of the Act he was underpaid in respect of the three public holidays referred to above. He submits that an award of €350 compensation that includes an under payment of €129.33 is not adequate in all the circumstances of this case.
The Complainant submitted that the breach of both of these sections of the Act had been persistent since he commenced employment with the respondent. He sought an extension of time pursuant to Section 27(5) of the Act to include breaches that occurred prior to the six months preceding the date on which the complaint was made. He supported this application on the grounds that he was a foreign national who did not speak English and was unfamiliar with the labour laws or institutions of the state.
Respondent’s position
The respondent accepted the findings of the Rights Commissioner. It acknowledged that it had breached both sections 15 and 21 of the Act. It submitted that it had maintained records in the prescribed format but did not present them to the Court for its consideration.
The respondent submitted that the compensation awarded was fair and reasonable in all the circumstances of this case.
The respondent objected to any extension of time as the complainant worked in a highly unionised environment and had reasonable access to English speaking supports and had been inducted into the company through a process conducted in his own language.
Findings of the Court
The Court considered the application for an extension of time. The Court has set out its position on such applications in the case ofCementationSkanska (Formerly Kvaerner Cementation) v CarrollLabour Court Determination WTC0338 (October 28, 2003 ). In that case the Court set out the position as follows
- It is the Court's view that in considering if reasonable cause exists, it is for the complainant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the complainant at the material time. The complainant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the complainant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.
The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the complainant has a good arguable case.
The Court finds that the Respondent admits the breaches of Sections 15 and 21 as found by the Rights Commissioner and offered no evidence nor submissions to the contrary for consideration by the Court.
Accordingly the Court upholds the decision of the Rights Commissioner in this regard.
The Court considered the compensation awarded by the Rights Commissioner in the context of the appeal submitted by the complainant.
The finds that the compensation awarded by the Rights Commissioner is inadequate in the context of the admitted breaches of the Act. The Court awards the complainant the sum of €1579.33 made up of €1450 compensation for the breaches of Sections 15 and 21 of the Act and €129.33 in respect of the underpayment for the three public holidays December 25 and 26 2010 and January 1 2011.
Determination
The appeal against the quantum of the award made by the Rights Commissioner is upheld. The Court awards the complainant compensation in the sum of €1579.33. The decision of the Rights Commissioner is varied accordingly.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
10th April 2012______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.