FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : WILLIAM LOWE (DOLPHIN'S BARN) LIMITED TRADING AS LOWE'S PUBLIC HOUSE (REPRESENTED BY M.P. GUINNESS B.L. INSTRUCTED BY WHITNEY MOORE, SOLICITORS) - AND - MS ÁINE MURPHY (REPRESENTED BY MANDATE) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioner's Decision r-129858-wt-13/JC.
BACKGROUND:
2. The Employer appealed the Rights Commissioner's Decision to the Labour Court on 3rd September 2013. A Labour Court Hearing took place on 7th November, 2013. The following is the Labour Court's Determination:
DETERMINATION:
Ms Áine Murphybrought a complaint before a Rights Commissioner pursuant to the Organisation of Working Time Act 1997 (the Act) alleging a breach of Section 12 of the Act. The Rights Commissioner upheld the complaint and awarded the sum of €8,000. William Lowe (Dolphin’s Barn) Limited t/a Lowe’s Public House appealed to the Court against the quantum of the award.
For ease of reference the parties are given the same designation as they had at first instance. Hence Ms Áine Murphy will be referred to as “the Complainant” and William Lowe (Dolphin’s Barn) Limited t/a Lowe’s Public House will be referred to as “the Respondent”.
The Rights Commissioner found that the Respondent was in breach of Act when it failed to ensure that the Complainant received her meal breaks on three of her five working nights per week, for the period covered by the claim - 25thJuly 2012 until 24thJanuary 2013.
Ms Mary Paula Guinness, B.L., instructed by Whitney Moore, Solicitors, on behalf for the Respondent submitted to the Court that the award granted in this case was disproportionate in all the circumstances. She told the Court that the Complainant had worked as a barperson in the Respondent’s public house since November 2002. Up until November 2011 there were three barpersons employed aside from family members, since that date due to the downturn in the business, the Complainant (aside from family members) was the only remaining employee and the Complainant has since been made redundant.
Mr David Moran, Mandate Trade Union, on behalf of the Complainant told the Court that the issue of not receiving break was brought to the attention of the Respondent by letters dated 15thOctober 2012 and 20thDecember 2012, however, the situation was not rectified. He sought to uphold the Rights Commissioner’s Decision. Mr Moran made reference toVon Colson & Kamann v Land Nordrhein – Westfalen[1984] ECR 1891 which held that sanctions for breaches of Community Rights must ensure that they are effective, proportionate and dissuasive and must have an element that reflects the gravity of the infringement and act as a disincentive against future infractions.
Having regard to all the circumstances of this case the Court is of the view that the quantum of the award made by the Rights Commissioner was excessive and disproportionate and accordingly determines that the Complainant should be paid the sum of €1,500 in respect of the Respondent’s breach of Section 12 of the Act.
The Court is satisfied that the award meets the standard required by the CJEU in theVon Colsoncase.
The Court upholds the Respondent’s appeal and varies the Decision of the Rights Commissioner accordingly.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
27th November 2013______________________
CO'RDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary.