FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : CARNEGIE COURT HOTEL (REPRESENTED BY KEN STAFFORD - AND - TOMAS CICMIS (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Ms Ni Mhurchu |
1. Appealing of Rights Commissioner's Decision No: r-111473-Wt-11/EH
BACKGROUND:
2. This case is an appeal by the worker of Rights Commissioner's Decision No: r-111473-wt-11/EH. The issues concern alleged breaches of the Organisation of Working Time Act, 1997. The dispute was referred to a Rights Commissioner for investigation. His Decision issued on 21st November, 2011 and awarded the complainant €1000 in compensation. On the 23rd December 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 19th July, 2012.
The following is the Court's Determination.
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 11, 12 and 17 of the Act. The Rights Commissioner upheld the complaints and awarded the sum of €1,000. Both the Complainant and the Respondent appealed against the quantum of compensation awarded.
Mr Richard Grogan, Richard Grogan & Associates Solicitors on behalf of the Complainant submitted that the quantum of compensation awarded by the Right’s Commissioner was not adequate or reasonable in all the circumstances of the case.
Mr Grogan submitted that the Respondent was in breach of the Act as the Complainant did not always receive his meal breaks in accordance with Section 12. He submitted that he did not receive an eleven hour break in accordance with Section 11 of the Act on ten occasions in the relevant period and consequently the Respondent was also in breach of Section 17 of the Act as it did not notify him of his finishing times when he worked later than scheduled on those occasions.
Mr Ken Stafford, on behalf of the Respondent, accepted that there was no record of meal breaks taken, however, it was submitted that the Complainant received a free meal, taken in the canteen and other short/smoke breaks as required. Mr Stafford stated that when the Hotel was busy on a Saturday night the Complainant would be required to work until finishing time, which time would not have been know in advance, therefore it would not have been possible to give 24 hours’ notice in accordance with Section 17 of the Act. Mr Stafford accepted that there were ten occasions when he would not have received an eleven hour break in accordance with Section 11 of the Act as he worked the breakfast shift the next morning. The Court notes that having conducted a detailed investigation as requested by the Court, it was discovered that there were in fact nine and not ten occasions when the Complainant did not have an eleven hour break between rosters in the relevant period.
Mr Stafford submitted to the Court that the Sunday breakfast shift was very popular with workers as it was a short shift and was paid at a premium rate. Furthermore, Mr Stafford stated that at no time had the Complainant made any complaints and submitted that in the context of its business as a Hotel it was not always possible to be precise about finishing times.
Mr Stafford informed the Court that since this claim was referred to the Rights Commissioner the Respondent has changed its recording system to ensure it is now compliant with the Act.
Mr Grogan made reference toVon Colson & Kamann v Land Nordrhein – Westfalen[1984] ECR 1891 where the CJEU held that sanctions for breaches of Community rights must ensure that they are effective and have a deterrent effect, and must amount to more that purely nominal compensation. Having regard to all the circumstances of this case the Court is satisfied that the quantum of the award made by the Rights Commissioner meets the standard required by the ECJ in that case.
The Court concurs with the findings of the Rights Commissioner, however, the Court varies the award and in measuring the quantum of compensation which is fair and equitable in the circumstances determines that the sum of €800 should be paid to the Complainant within six weeks of the date of this Determination. The Court varies the Rights Commissioner’s decision accordingly.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
22nd August 2012______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.