FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : JANUS NOWAK CONSTRUCTION SERVICES LTD (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) - AND - ROBERT ZAMARLO (REPRESENTED BY TALLAGHT ENTERPRISE CENTRE) DIVISION : Chairman: Mr Duffy Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner's Decision No: r-098593-wt-10/EH
BACKGROUND:
2. This case is an appeal by the Company of Rights Commissioner's Decision No: r-098593-wt-10/EH. The issue concerns a claim by the worker that he did not receive his entitlements in respect of annual leave and four public holidays that occurred during his employment with the Company.. The issue was referred to a Rights Commissioner who awarded the worker €2750. The award was to take into account the economic loss suffered by the worker and the principles of the Von Colson Kamann v Land Nordrhein- Westfalen case [1984] ECR1891 where the judicial redress should also provide a deterrent against future infractions. The employer's position is that the issue relating to Public Holidays was properly before the Rights Commissioner but that no claim had been lodged relating to annual leave entitlements.
On the 12th May 2011, the employer appealed the Rights Commissioner's Decision in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. Labour Court hearings took place on 23rd August 2011 and 10th January, 2012
The following is the Court's Determination:
DETERMINATION:
This is an appeal by Janus Nowak Construction Services Limited (the Respondent) against a decision of a Rights Commissioner in a claim by Robert Zamorlo (hereafter the Claimant), under the Organisation of Working Time Act 1997.
The Claimant was employed by the Respondent from 18th January 2010 until 30th July 2010. The Claimant contends that he was not paid in respect of either annual leave or public holidays during the currency of his employment. The complaint was presented to a Rights Commissioner on 7th October 2010. The form on which the complaint was submitted particularised the claim as being in respect to Public holidays only.
However, it appears that at the hearing (which the Respondent did not attend) a further complaint in relation to annual leave was presented and considered by the Rights Commissioner.
In his decision the Rights Commissioner first granted the Claimant an extension of time so as to encompass the entire period of his employment with the Respondent. He then awarded the Claimant compensation for the Respondent's failure to pay him in respect to four public holidays, namely, 17th March 2010, 5th April 2010, 3rd May 2010, 7th June 2010. The Rights Commissioner further awarded the Claimant compensation for the Respondent's failure to afford him annual leave in accordance with the Act.
The Respondent's Appeal
While a number of issues were raised on behalf of the Respondent in this appeal, the only point of substance relates to whether a claim in respect to annual leave was ever made to the Rights Commissioner or, if made, whether such a claim was within time.
Conclusion of the Court
It is clear that the form on which the original claim was made related only to Public Holidays. No claim was made on this form in respect to annual leave. The Rights Commissioner's hearing was held on 11th March 2011, and while it seems clear that such a claim was made at that hearing but at that stage it was outside the six month time limit prescribed by Section 27(4) of the Act.
In these circumstances the Court considered if an extension of time could be granted so as to enable the complaint concerning annual leave presented orally to the Rights Commissioner on 11th March 2011, to be entertained.
Extension of time
The Court was told that the Claimant was in continuing discussions with the principal of the Respondent in relation to outstanding monies which were owed to him. He believed that these monies would be paid and, consequently, did not make a claim under the Act until the end of September 2010.
The Court accepts that this both explains the delay up to the date on which the claim form was submitted to the Rights Commissioner service of the LRC, on 9th October 2010, and affords a reasonable excuse for the delay. In the Court's view it does not explain the delay in making a claim relating to annual leave.
In these circumstances the Court does not believe that a claim in respect to annual leave was properly before the Rights Commissioner. In consequence, such a claim cannot be properly before the Court.
In these circumstances the only claims which this Court can now entertain are those relating to the four Public Holidays which fell during the currency of the Claimant's employment.
Determination
The Court finds that the Respondent contravened Section 21 of the Act by not providing the Claimant with any of the benefits prescribed by Subsection (1) of that section in respect of the four Public Holidays to which the claim presented on 9th October 2010. The Court awards the Complainant €500 by way of compensation to include the economic value of the Public Holidays in issue and a general dissuasive compensations amount.
The decision of the Rights Commissioner is varied accordingly.
Signed on behalf of the Labour Court
Kevin Duffy
6th February 2012.______________________
AHChairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.