FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : CURTEUST LIMITED T/A DANDELION CAF� BAR - AND - ANNA BRADNOVA DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Tanham |
1. Appeal of Rights Commissioners Decision R-111650-WT-11.
BACKGROUND:
2. A Rights Commissioner hearing took place on the 17th October 2011, and a Decision was issued on the 23rd February 2012.
The Worker appealed the Decision of the Rights Commissioner to the Labour Court on the 20th March 2012 in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 4th July 2012.
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 19 and 21. The Rights Commissioner did not uphold the complaints.The Worker appealed the Decision.
For ease of reference the parties are referred to as they were at first instance. Hence Ms. Anna Bradnová is referred to as “the Complainant” and Curteust Limited t/a Dandelion Cáfe Bar is referred to as “the Respondent”.
The Complainant submitted her claim under the Act to the Rights Commissioner on 14thApril 2011.
Background
The Complainant was employed by the Respondent from 22ndDecember 2008 until 31stMarch 2009 and subsequently from 1stFebruary 2010 until 29thMay 2011. On 11thFebruary 2011 the Respondent purchased the business from a Receiver appointed to the previous Company prior to the sale of the business and the transfer of its employees to the Respondent.
Section 19 Claim
The Complainant submitted that she had not received her full annual leave entitlement in respect of the period from December 2010 until her employment ceased in May 2011.
The Respondent accepted that following enquiries it made from the previous owner the Complainant was owed the sum of €344.48 in respect of annual leave and it was prepared to discharge that sum to the Complainant.
Section 21 Claim
The Complainant claimed that she had an outstanding entitlement to four public holidays i.e. 25thand 26thDecember 2010 and 1stJanuary and 17thMarch 2011.
The Respondent accepted that there was an outstanding entitlement in respect of 17thMarch 2011 but stated to the Court that it had not been possible to ascertain details of outstanding public holiday entitlements for the period prior to its acquisition of the business.
Findings of the Court
Having considered the submissions of both parties the Court is satisfied that the Complainant supplied detailed information on her alleged outstanding entitlements under the Act. Similarly, while accepting its obligations under theEuropean Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003,the Respondent submitted that it was hampered in its efforts to ascertain accurate information on any outstanding entitlements by the legacy it had inherited from the previous owner. However, the Respondent supplied to the Court all information made available to it from both the Receiver and the previous owner to substantiate its position.
The Court is satisfied that the cognisable period for thepurpose of investigating the complaint in relation to annual leave is the period from 1stApril 2010 until the date of claim on 14thApril 2011 and for public holidays is the period from 15thOctober 2010 until 14thApril 2011.
The Court notes that there was substantial agreement between both parties on the outstanding annual leave and public holiday entitlements and that the Respondent was anxious to discharge its liabilities.
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.
Determination
In all the circumstances of this case the Court awards the sum of €1,000 for the breaches of the Act, and 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 CJEU inVon Colson.
The Decision of the Rights Commissioner is accordingly set aside and the Complainant’s appeal is upheld.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
6th July 2012______________________
CRDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.