FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : C.J. HURLEY LTD - AND - MR SERGEJS POGODINS (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal against a Rights Commissioners Decision r-109766-wt-11/JW.
BACKGROUND:
2. A Rights Commissioner hearing took place on the 1st September 2011 and a Decision was issued on the 5th January 2012. A correcting Order of the original Rights Commissioner Decision issued on the 29th June 2012.
- The Employee appealed the Decision of the Rights Commissioner to the Labour Court on the 17th July 2012, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 7th November 2012.
DETERMINATION:
C.J. Hurley Ltd (“the Respondent” or “the Company”) is a company engaged in the Construction Industry. Mr Pogodins (the Complainant) commenced working for the Company in 2005. There is some dispute regarding the precise nature of the work he performed. However it is common case that he was employed as a “General Worker” within the meaning of the Registered Employment Agreement for the Construction Industry. Initially he was paid as a Grade D worker. He was subsequently paid as a Grade C worker.
In the course of 2011 the worker, pursuant to the provisions of Section 27 of the Act, submitted a complaint to the Rights Commissioner alleging that the Respondent infringed his entitlements under Section 20(2) (b) the Act and Section (2) of S.I. No. 475 of 1997. In essence he alleged that he was not paid the proper rate of pay in respect of his annual and public holiday entitlements in the relevant period.
The Rights Commissioner upheld the complaint and awarded the Complainant compensation in the sum of €152.10 for the relevant infringements of the Act. The Complainant appealed against the quantum awarded by the Rights Commissioner. The Respondent did not appeal against the Decision.
The case came on for hearing on the 7thNovember 2012.
Complainant’s Position
The Complainant submits that the Respondent Company, a “Building Firm” within the meaning of the Registered Agreement for the Construction Industry, employed him as a general operative within the meaning of that agreement. He submits that he is entitled by virtue of his skills and length of service to payment at the Grade C rate of pay. He submits that he was incorrectly paid at the Grade D rate of pay and that his holiday pay was based on this incorrect rate. He submits that the provisions of the REA are by statute inserted into his contract of employment and accordingly he is entitled to have his holiday pay calculated at the higher Grade C rate of pay to which he was entitled. He submits that he incurred costs and outlays in bringing the complaint before the Rights Commissioner and the Labour Court. He acknowledges that he is not entitled to legal costs he incurred in bringing the case. He submits that he should not have to bear the costs he actually incurred in attending at the hearings of the Rights Commissioner and Labour Court in order to vindicate his rights and entitlements. Furthermore he submits that the Court is bound to follow the decision of the CJEU in C-14/83Van Colson and Kamann v Land Nordrhein-Westfalenand make an award that not only compensates for economic loss but that is also persuasive and dissuasive of the employer against further breaches of the Act. He submits that the award of an amount that is no more than the loss of pay involved and that does not compensate for the actual economic loss involved is not consistent with the provisions of that CJEU judgement.
The Respondent submits that it has been in business for over 30 years and has had an excellent relationship with it staff. It submits that it has never been before any court or tribunal regarding the manner in which it has treated its staff. It submits that it has always complied with the provisions of the Registered Agreement and with the Organisation of Working Time Act. It submits that it disputed the complainant’s assertions regarding the work that he was engaged to perform and sought to make its case in this regard to the Rights Commissioner. When it was unsuccessful in this regard it paid the full amount of the award without delay. It cannot be held accountable for the amount awarded by the Rights Commissioner nor should it be asked to compensate the complainant for the costs he incurred arising out of a decision over which it had no control. It submits that as the evidence shows that it has always been compliant with the law an award to deter future breaches is not relevant or appropriate.
Findings of the Court
The Court notes that the Respondent has not appealed against the findings of the Rights Commissioner. The Court also notes that the Respondent accepted the decision of the Rights Commissioner and paid the award in full with immediate effect. Nevertheless the Court finds that the Complainant has made out a fair case that he should not suffer an economic loss by taking the case through procedures to establish his statutory entitlements. Equally the Court is not disposed to the view that the Respondent is likely in the future to infringe the provisions of the Act.
Accordingly the Court increases the Rights Commissioner’s award to €350 to compensate the Complainant for the economic cost he incurred in vindicating his rights and entitlements through the statutory institutions concerned.
Determination
The Complaint is well-founded. The Court awards the Complainant the sum of €350 compensation for the infringements of his entitlements under the Act. The Rights Commissioner’s Decision is varied accordingly.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
CR______________________
10th December, 2012Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.