FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : ACOL LIMITED - AND - MR DARIUS TAMASAUSKAS (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Mr Hayes Employer Member: Ms Doyle Worker Member: Mr Shanahan |
1. Appeal of a Rights Commissioner's Decision R-112109-WT-11/JW.
BACKGROUND:
2. The case before the Court concerns the Worker's appeal of Rights Commissioner's Decision R-112109-WT-11/JW. The Worker contends that during his period of employment his Employer breached the terms of the Organisation of Working Time Act, 1997 and he did not receive his public holiday entitlements. The matter was referred to a Rights Commissioner for investigation. On the 25th January, 2012, the Rights Commissioner issued his decision as follows:
"I order the Employer to pay to the Claimant compensation in the sum of €117 gross for breaches of Section 21(1) of the Act.
This sum must be paid within 6 weeks of this decision".
On the 3rd February, 2012 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 26th April, 2012. The following is the Determination of the Court:
DETERMINATION:
The case comes before the Court by way of an appeal by Mr Darius Tamauskas (“the Complainant”) against Rights Commissioner Decision Number r-112109-WT-11/JW. The Rights Commissioner found that a complaint made by Mr Tamauskas was well founded. The complaint alleged that, contrary to the provisions of Section 21(1) of the Organisation of Working Time Act 1997 (“the Act”), he had been underpaid by his employer Acol Ltd “(the Respondent”) in respect of the Public Holiday that fell on 17 March 2011. The Rights Commissioner awarded him compensation in the amount of €117.
The Complainant appealed the quantum awarded by the Rights Commissioner to the Labour Court.
The case came on for hearing on 26thApril 2012. The Complainant was represented by Mr Richard Grogan Solicitor, Richard Grogan & Associates. The proprietor, Mr Dermot Collier, represented the Respondent at the hearing.
The Complainant’s Case
The Complainant, by way of submission to the Court, stated that the Respondent is a construction company within the meaning of the Registered Employment Agreement for the Construction Industry (REA). He submitted that he was employed by the Respondent as a Grade C construction worker within the meaning the REA. His hourly rate of pay at the relevant time was €14.62 per hour. He submits that the REA provides for an hourly rate of pay of €15.14 per hour. He submits that he is entitled to be paid his holiday pay based at the rate set out in the REA rather than the contract rate of €14.62 per hour.
He further submits that he worked for the Respondent from 19 May 2008 until 13 May 2011. However, with effect from 9 March 2011 he was told there was no work for him though he was not formally laid off in conformity with the provisions of the Redundancy Payments Acts. He submits that he had at this time accrued an entitlement to payment for the Public Holiday that fell on 17 March 2011. He submitted that, contrary to the provisions of Section 21(1) of the Act he was not paid for this Public Holiday.
He further submits that award made by the Rights Commissioner did not reflect his entitlement under law and amounted to less than his economic loss. He asked the Court for redress in this regard. He submits that the Court should award him a level of compensation for the costs he incurred in bringing the case before the Rights Commissioner and the Labour Court. He referred the Court to the jurisprudence of the European Court of Justice and in particular to the decision inVon Colson and Kamann v Land Nordrhein-WestfalenCase No 14/83 ECJ. However he also submitted that as the entitlement to Public Holidays arose out of domestic law decisions of the ECJ were not binding on the Court.
Position of the Respondent
The Respondent submitted that his was a small company that had gone to great lengths to keep the Complainant in work through the recent collapse of the construction industry. He submitted at one stage in his employment he had paid the Complainant at a higher rate than that provided for in the REA. He acknowledged that he had inadvertently failed to bring the rate into line with the REA when his entitlement exceeded the rate at which he was being paid.
He submitted that he had originally disputed the Complainant’s entitlement to payment for the Public Holiday in question. He submitted that he now accepted that he was wrong in this view. He submitted that he should not be penalised for exercising his right to have the matter in dispute decided by the Rights Commissioner under the Act. He further submitted that mounting his defense to the complaint before the Rights Commissioner and the Labour Court had also cost him dearly and that this should be recognised by the Court when deciding the level of compensation to be awarded in this case.
Findings of the Court
It is common case that the Complainant was entitled at the relevant time to be paid at the rate of €15.14 per hour in accordance with the provisions of the REA. It is also common case that the Complainant is entitled to be paid at that rate for the Public Holiday that fell on 17 March 2011.
The Court finds that the jurisprudence of the ECJ has no effect in this matter as the Complainant’s entitlement to payment for public holidays has its origin in Irish and not European law.
The Court, in accordance with Section 27 of the Act and having taken into account the submissions of both sides determines that the complaint before it is well founded.
Under the Act there are a number of remedies available to the Court. Having determined that the complaint is well founded, the Court may instruct the Respondent to comply with the provisions of the Act and or award compensation of such amount (if any) as if fair and reasonable in all the circumstance of the case.
The Court has decided that an award of compensation commensurate with the actual loss incurred by the Complainant is a fair and reasonable approach to take in all the circumstances of this case.
Determination
The Court finds that the complaint is well founded and, In all the circumstances of this case, awards the Complainant the sum of €118.09 (15.14*39/5) being the amount the S.I. No. 475/1997provides he is entitled to be paid in respect of the public holiday that fell on 17 March 2011.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
20th June 2012______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.