FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : T & J STANDISH (ROSCREA) LTD TRADING AS STANDISH SAWMILLS - AND - ROBERT DALEK (REPRESENTED BY DIARMUID MURPHY B.L., INSTRUCTED BY MAGUIRE MC CLAFFERTY SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal of a Rights Commissioner's Decision R-097705-WT-10/TB.
BACKGROUND:
2. The case before the Court concerns the Employer's appeal of a Rights Commissioner's Decision R-097705-WT-10/TB. The Employer, a family-run business, operates a sawmill and manufactures timber products for retail purposes. The Worker involved in this case was employed as a full-time General Operative for a period of time from September 2007 until his employment terminated in July 2010. The Worker contends that during the course of his employment, the Employer breached the terms of the Organisation of Working Time Act, 1997 and he did not receive his proper entitlements in terms of annual leave. The Employer disputes the Worker's claim arguing that the Worker received his full entitlements in relation to annual leave and holiday pay and as a result he is not owed any outstanding monies at this time. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 28th June, 2011, the Rights Commissioner issued his decision as follows:
"Based on the evidence I uphold the complaint that the Claimant did not get holidays in accordance with the provisions of the legislation. For this breach of his statutory rights I require the employer to pay him €1,250 in compensation".
The Employer 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 4th July, 2011. The Court heard the appeal on the 29th May, 2012 the earliest date suitable to the parties.The following is the Determination of the Court:
DETERMINATION:
The Complainant brought a complaint before a Rights Commissioner pursuant to the Organisation of Working Time Act 1997 (the Act) alleging a breach of Section 19. The Rights Commissioner upheld the complaints and awarded the sum of €1,250.00.The Employer appealed the Decision.
For ease of reference the parties are referred to as they were at first instance. Hence Mr Robert Dalek is referred to as “the Complainant” and T&J Standish (Roscrea) Limited is referred to as “the Respondent”.
The Complainant submitted a claim under the Act to the Rights Commissioner on 10thAugust 2010.
Background
The complaint herein related to the Respondent’s alleged failure to provide the Complainant with paid annual leave in accordance with Section 19 of the Act. The Complainant was employed by the Respondent from 22ndSeptember 2007 until 30thJuly 2010 and was paid €300.00 per week. The Respondent submitted that the Complainant had received his entitlements under Section 19 of the Act and appealed the Rights Commissioner’s Decision.
Findings of the Court
Section 27(4) of the Act allows for complaints to be presented within 6 months of the alleged contravention and section 27 (5) provides for an extension of that limit by a further 12 months where reasonable cause has been shown for the Claimant’s failure to present the complaint within that time limit. No application was made for an extension of time.
A leave year is defined in Section 2 (1) as the year beginning on the first day of April. The Complainant made his complaint on 10thAugust 2010, therefore, his claim is based on the leave year, 1stApril 2009 – 31stMarch 2010 and from the commencement of the leave year on 1stApril 2010 until the date of termination of his employment on 30thJuly 2010.
The Court was supplied with details of the hours and weeks worked and annual leave taken in the relevant leave years covered by the claim. The Court is satisfied from the information supplied that there is an outstanding annual leave entitlement of 7.8 hours in respect of the leave year 2009/2010 and 29.64 hours in respect of the period from 1stApril 2010 to 30thJuly 2010. Therefore the Complainant has an outstanding annual leave entitlement which the Court quantifies at €288.00.
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.
The Court has considered the Respondent's appeal of the Rights Commissioner's Decision and in the light of its current financial circumstances decides to award a sum of €600.00 for the breach of the Act which 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 ECJ inVon Colson.
The Decision of the Rights Commissioner is varied accordingly.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
27th June 2012______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.