FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : DARIUS VHITEKUNAS T/A D.V. AND S.K. CARPENTRY - AND - SVAJUNAS URBONAS (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner's Decision R-060467-WT-07/JW.
BACKGROUND:
2. The case before the Court concerns the Worker's appeal of Rights Commissioner’s DecisionR-060467-WT-07/JW.The dispute relates specifically to the Worker's claim that during the course of his previous employment as a General Operative with the Company, he did not receive his statutory holiday pay entitlements. The matter was referred to a Rights Commissioner for investigation. On the 8th November, 2012, the Rights Commissioner issued his Decision as follows:
"Based on the uncontested evidence presented at the hearing, I find that the complaint is well founded in relation to holiday pay only.
I order the employer to pay to the claimant compensation in the sum of €181.50 (39 hours x 4 weeks = 156 hours x 8% = 12.50 hours x €14.52 per hour = €181.50)
This sum must be paid within 6 weeks of the date of this decision".
On the 4th December, 2012 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. A Labour Court hearing took place on 8th March, 2013. The Employer was not present and was not represented at the hearing. 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 breaches of Sections 19 and 21. The Rights Commissioner upheld the complaint under Section 19 and awarded the sum of €181.50.
The Complainant appealed to the Court against the quantum of the award in respect of the breach of the Act under Section 19, there was no appeal of the finding under Section 21. The Respondent did not attend before the Court for the hearing of the appeal.
The Complainant submitted a claim under the Act to the Rights Commissioner on 20thDecember 2007. The Rights Commissioner issued his Decision on 8thNovember 2012.
Mr Richard Grogan, Solicitor on behalf of the Complainant submitted that the quantum of compensation awarded by the Rights Commissioner was not adequate or reasonable in all the circumstances of the case. He quantified the economic loss at €724.83. This was based on calculating 8% of the hours worked, in accordance with Section 19(1)(c) of the Act, in the sixteen week period from the commencement date of the Complainants employment to his termination date at the Complainant’s hourly rate of €14.52. Therefore, he argued that the economic loss was significantly in excess of the amount of compensation awarded by the Rights Commissioner.
Mr Grogan 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 and have a deterrent effect and must amount to more that purely nominal compensation.
Section 23 of the Act provides that on cesser of employment an employee is entitled to be paid the economic value of all outstanding holidays in respect of the leave year, therefore the Court is satisfied that the outstanding annual leave entitlement due to the Complainant equates to €724.83.
Having regard to all the circumstances of this case the Court is not satisfied that the quantum of the award made by the Rights Commissioner meets the standard required by the CJEU in that case.
The Court measures the appropriate level of compensation at €1,000 and varies the Decision of the Rights Commissioner accordingly.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
13th March 2013______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.