FULL RECOMMENDATION
SECTION 28(1); ORGANISATION OF WORKING TIME ACT; 1997 PARTIES : BAGNALLS HOTEL LTD (REPRESENTED BY O' DONOVAN & COWEN SOLICITORS) - AND - MR DAVID D' ALTON (REPRESENTED BY JOHN J QUINN & CO SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. Appeal of Rights Commissioners Decision r-100309-wt-10/GC
BACKGROUND:
2. A Rights Commissioner hearing took place on the 18thApril 2011, and a Decision was issued on the 18thJuly 2011.
The Employer appealed the Decision of the Rights Commissioner to the Labour Court on the 10thAugust 2011, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 26thApril 2012 with a subsequent Labour Court hearing taking place on the 25thJuly 2012.
DETERMINATION:
Mr David D’Alton brought a complaint before a Rights Commissioner pursuant to the Organisation of Working Time Act 1997 (the Act) alleging breaches of Sections 12, 13, 15, 19 and 21. The Rights Commissioner upheld the complaints and awarded the sum of €3,000.00.The Employer appealed the Decision.
The Employer did not attend before the Rights Commissioner for reasons which were explained to the Court.
The parties are referred to as they were at first instance. Hence Mr David D’Alton is referred to as “the Complainant” and Bagnalls Hotel Limited is referred to as “the Respondent”.
The Complainant submitted a claim under the Act to the Rights Commissioner on 20thSeptember 2010.
Background
The Complainant was employed by the Respondent from 2005 until 2010 as Head Chef, and was paid €1,000 per week.
Summary of the Complainant’s Case
Mr Conor Quinn, John J. Quinn & Company Solicitors on behalf of the Complainant submitted that the Respondent was in breach of the Act as the Complainant was required to work excessive hours without breaks and he was not given his appropriate annual leave and public holiday entitlements under the Act for the entire period of his employment.
Mr Quinn stated that as Head Chef the Complainant was required to work between 70 and 100 hours per week and was regularly required to work seven days without a break.
Mr Quinn submitted that the records submitted by the Respondent were not a true reflection of the hours worked by the Complainant as he was not required to clock in or out. Accordingly, Mr Quinn submitted that the Respondent was in breach of Section 25 of the Act.
Summary of the Respondent’s Case
Ms Eimer O’Connor, O’Donovan & Cowen Solicitors, on behalf of the Respondent denied the allegations made and claimed that there was no substance in the claims before the Court under the Act.
Ms O’Connor stated that all staff including the Complainant are afforded adequate rest breaks and intervals during their working time and a dedicated staff canteen is available for this purpose. While other members of staff are required to clock in and out, the Complainant, as Head Chef, was not required to do so. Ms O’Connor submitted that there was an adequate number of staff employed to ensure that the Complainant could take his rest and breaks while other staff continued to work. She gave details of the number of chefs and kitchen porters employed during the Complainant’s tenure with the Respondent:
- 2007 6 chefs, 7 kitchen porters
2008 8 chefs, 4 kitchen porters
2009 8 chefs, 5 kitchen porters
2010 7 chefs, 4 kitchen porters
Ms O’Connor stated that the Respondent has a system in place for facilitating employees in taking paid annual leave, employees submit holiday requests forms and the Complainant availed of this system. She submitted that in the hotel industry it is inevitable that employees will have to work on public holidays and the Respondent maintains detailed records of the number of hours worked on such days. She stated that the Complainant was afforded paid days off in lieu of public holidays.
Ms O’Connor submitted details of annual leave indicating thatthe Complainant was off on weeks 10 and 11 and weeks 35 and 36 of 2009, and weeks 4 and 5 of 2010.
Findings of the Court
The complaints submitted to the Rights Commissioner and on appeal to the Court were in respect of the entire period of the Complainant’s employment, from 2006 until his termination in 2010.
There was confusion between the parties on the Complainant’s termination date. The Complainant supplied a copy of a letter (undated) which he told the Court he had sent to the Respondent giving three weeks’ notice to take effect from 12thJuly 2010 until 1stAugust 2010. The Respondent produced records to show that the Complainant was paid up to week 18 of 2010, i.e. up to 16thMay 2010.
The Court notes that in the Respondent’s grounds of appeal to the Court, it states that“shortly after 23rdJune 2010 (the date of an accident in which the Complainant was involved) the Claimant left his employment”,accordingly the Court is satisfied that the Complainant’s version of events is accurate and therefore the Court accepts that his employment terminated with effect from 1stAugust 2010.
The Court must first consider what period is cognisable for the purpose of investigating the complaint.
The complaint was received by the Rights Commissioner Service of the Labour Relation Commission on 20th September 2010. Section 27(4) of the Act provides that a Rights Commissioner (and the Court on appeal) cannot entertain a complaint unless it is presented to the Rights Commissioner within six months of the contravention complained of. By application of that provision only such contraventions of the Act as may have occurred on or after 21stMarch 2010 could be taken into account for the purpose of awarding redress under the Act. However the Complainant seeks to rely on alleged contraventions extending over a significantly longer period.
Section 27 of the Act provides in relevant part as follows:
- (4) A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.
(5) Notwithstanding subsection (4), a rights commissioner may entertain a complaint under this section presented to him or her after the expiration of the period referred to in subsection (4) (but not later than 12 months after such expiration) if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause.
It follows that the cognisable period for the purpose of the within claim is from 21st March 2010 to 1stAugust 2010.
There were four public holidays occurred in the cognisable period, Easter Monday 25thApril, 2ndMay, 6thJune and 1stAugust 2010.
However in respect of complaints relating to annual leave, Section 2 of the Act provides that a leave year means a year commencing on 1st April. Thus, for the purposes of compliance with Section 20(1) of the Act, the leave must be granted in the leave year as so defined unless there is an express agreement between the employer and the employee to grant it within the following six months (Royal Liver Assurance v Macken and Others, High Court, Unreported, Lavin J. 15th November 2002). It is also clear from that Judgment that where there is a failure to provide the requisite leave and the absence of an agreement to extend the period, a contravention of the Act crystallises at the end of the leave year.
Therefore, as the Complainant made his complaint to the Rights Commissioner on 20thSeptember 2010, any claim for annual leave based on the leave years which began on the 1stApril, 2009 are in time and any claims in respect of the leave years prior to 31stMarch, 2009, are out of time.It follows that, as the six-month period referred to in the complaint under Section 27(4) of the Act straddles two different leave years (1stApril 2009 – 31stMarch 2010 and 1stApril 2010 – 31stMarch 2011), the cognisable period for the purpose of the within claim in respect of annual leave is from 1stApril 2009 to 1stAugust 2010.
The Court is satisfied that the records show that the Complainant received his annual leave entitlement in respect of the leave year 1stApril 2009 – 31stMarch 2010, however, no data was produced to indicate that the Complainant received his annual leave entitlement in respect of the period between 1stApril 2010 – 1stAugust 2010. Similarly, the Court is not satisfied that data has been produced to indicate that the Complainant received his entitlements to the four public holidays which accrued during the cognisable period from21st March 2010 to 1stAugust 2010. Consequently, the Court is satisfied that the Respondent was in breach of Section 19 and 21 of the Act.
Having considered the submissions made the Court is not satisfied that the Respondent has supported its contention that it has fully complied with the Act in terms of the provision of breaks and ensuring that the Complainant did not work in excess of 48 hours per week. The Respondent was unable to produce for the Court records to substantiate its position, as required in the prescribed manner provided under Section 25 of the Act. Consequently, the Court must find that the Respondent was in contravention of Sections 12, 13 and 15 of the Act and therefore cannot substantiate its appeal.
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 and in all the circumstances of this case determines to vary the Rights Commissioners Decision and awards the Complainant the sum of €5,000.00 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
16th August, 2012______________________
CRDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.