FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : SOUTHWELL INVESTMENTS COMPANY LTD T/A NED KELLYS (REPRESENTED BY CONNOLLY SELLORS GERAGHTY SOLICITORS) - AND - MR ADMIR PONARI (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner's Decision R-117027-WT-11/EH.
BACKGROUND:
2. The case before the Court concerns an appeal by Mr Admir Ponari hereinafter referred to as “the Complainant” or “the Worker”, of Rights Commissioner's Decision R-117027-WT-11/EH. The Worker complained that his employer, Southwell Investments Company Ltd T/A Ned Kellys, hereinafter referred to as “the Respondent” or “the Employer” breached Section 21 of the Organisation of Working Time Act, 1997, hereinafter referred to as “the Act”, as it did not afford him his statutory entitlement to Public Holiday as provided for in the Act. The Worker was employed by the Respondent as a Security Operative between August 2005 and September 2011. The Worker contends that during that time, his public holiday entitlements were merged with his annual leave entitlement and that taken together he did not receive his full statutory Public Holiday entitlement. The Worker is seeking compensation for the denial of his statutory entitlements. The Respondent rejects the Worker's complaint, maintaining that he was allowed his full entitlement to all of the statutory Public Holidays that fell in the relevant period. The Respondent submits that these were allowed as an extra week’s leave each year rather than by way of individual days off or pay in lieu, in strict compliance with the terms of the Act as this best suited the workers involved,. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 2nd April, 2012 the Rights Commissioner issued his Decision as follows:
"As per Section 27(3)(a) I have decided that the claim was well-founded.
As per Section 27(3)(b) I require the Employer to comply with the relevant provisions of Section 21 of this Act
As per Section 27(3)(c) I require the Employer to pay compensation of €500 within six weeks of the date below".
The Worker appealed the Rights Commissioner’s Decision to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997 on the 5th April, 2012. The Court heard the appeal on the 28th June, 2012, the earliest date suitable to the parties. The following is the Determination of the Court:
DETERMINATION:
This is an appeal by the Complainant against the quantum awarded by the Rights Commissioner on foot a finding that he made that a a complaint the Worker made that his Employer, "the Respondent", had denied him his entitlements under Section 21 of the Act, was well founded. He awarded the Complainant €500 compensation. The Complainant appealed this award to the Labour Court.
The facts of the case are not in dispute. The Complainant worked for the Respondent as a security guard between August 2005 and 29 September 2011. It is common case that the Respondent allowed all of its employees, including the Complainant, 25 days paid leave per annum inclusive of Public Holidays. The Respondent contends that as his employees are, for the most part, foreign nationals an additional week off rather than individual days off on each of the Public Holidays was the most suitable and practical arrangement for both his business and for the workers concerned. The Respondent accepts that the practice was contrary to the provisions of the Act and has taken steps to correct them and to bring them into line with statutory requirements.
Extension of Time
The Complainant sought an extension of time pursuant to the provisions of Section 27(5) of the Act. He submits that he was a foreign national with little knowledge of Irish law. He submitted that his employer had not provided him with a contract of employment. He submits that he had no reason to question his Employer's compliance with the Act and in good faith accepted that 25 days leave per annum amounted to his total statutory entitlement. On this basis he seeks an extension of time.
The Respondent objects to the extension of time. He submits that no ground has been advanced on which the Court could grant such an application.
Determination
The Court finds that the Respondent employed the Complainant from August 2005 onwards. He did not submit a complaint under the Act until after he had left his employment in September 2011. The Court takes the view that the statutory provisions governing annual and public holidays were publicly available to the Complainant at all times during his employment with the Respondent. In addition there are numerous sources of information on Employment Rights that can be easily accessed by all workers within the state. These resources can be accessed over the Internet, by telephone and in person. The Court was presented with no evidence that the Complainant took any steps to establish his rights and entitlements over the period of his employment with the Respondent. Neither has any evidence been offered that the Complainant was misled by his Employer, prevented from accessing the publicly available sources of information on employment rights or in some way unable to or incapable of accessing such sources of information.
Accordingly the Court is not satisfied that Complainant has made out reasonable cause for this Court to allow an extension of time in this case. The Court accordingly rejects the application for an extension of time.
Section 21
The Complainant submits that in the six month period leading up to the date on which he made a complaint under the Act the Respondent failed to allow him his entitlement in respect of two Public Holidays.
He submits that this was not an isolated occurrence but should be seen in the context of a series of such breaches of the Act that stretched back over many years. He submits that the compensation awarded by the Rights Commissioner was not adequate when viewed in that context. He further submits that, in the context of the decision of theCJEU C – 14/83Von Colson and Kamann v Land Nordrhein-Westfalen[1984] ECR 1891the award was neither persuasive nor dissuasive in all the circumstances of the case.
The Respondent accepts that it unintentionally denied the Complainant his statutory Public Holiday entitlements in the relevant period. The Respondent submits that it made an honest mistake in this regard and has taken steps to correct its behaviourso as to prevent a repeat occurrence in the future. The Respondent submits that, when viewed in this context and taking into account the level of the award that was significantly in excess of the actual loss incurred by the Complainant, the Rights Commissioner’s award was fair and reasonable in all the circumstances of the case and should be upheld by this Court.
Findings
The Court finds that the Respondent failed to afford the Complainant his statutory Public Holiday entitlement in the relevant period. The Respondent presented the Court with holiday records that reveal a practice of not providing its employees with their full statutory leave entitlement. In the Complainant's case he was allowed four days less than his statutory holiday entitlement in the 2009 and 2010 leave years respectively. In addition he was allowed seven days less than his statutory holiday entitlement in the 2011 leave year.
In this context the Court finds that there was, over several years, an ongoing practice of not allowing the Complainant his statutory annual and/or Public Holiday entitlement. In particular the Court finds the Respondent, on two occasions in the relevant statutory time period, did not allow the Complainant his statutory Public Holiday entitlements. The Court, after detailed consideration of the records presented, admissions made in the course of the appeal and the submissions made by both parties, takes the view that the Rights Commissioner's award was not adequate in all the circumstances of this case.
Determination
The Court allows the appeal. The Court requires the Respondent to pay the Complainant €1,500 compensation for the breaches of his statutory entitlement to Public Holidays. This amount includes payment in respect of the two public holidays that fell in the relevant statutory time period in 2011.
The Rights Commissioner's decision is varied accordingly.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
12th July 2012______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.