FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : MR LIAM DELANEY TRADING AS LIAM DELANEY HAULAGE (REPRESENTED BY B HYLAND AND CO SOLICITORS) - AND - ZBIGINEW DEBNY (REPRESENTED BY RICHARD GROGAN & ASSOCIATES SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appeal against Rights Commissioner's Decision r-118188-wt-11/RG.
BACKGROUND:
2. The Employee and Employer jointly 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 28th August, 2012 and 1st October, 2012 respectively. The Court heard the appeal on the 27th February, 2013 and was the case subsequently concluded 29th August, 2013 after the Employer had withdrawn his appeal.
DETERMINATION:
The case was referred to the Court as a joint appeal by both the Worker and the Employer. Subsequent to the first hearing held on 27thFebruary 2013 the Employer withdrew its appeal. Therefore the Court hereby deals with the appeal made by Mr Zbiginew Debny (the Complainant) of a Rights Commissioner’s Decision under the Organisation of Working Time Act, 1997 (the Act).
The Complainant worked for Liam Delaney trading as Liam Delaney (the Respondent) as a haulage driver from 30thAugust 2010 until 3rdOctober 2011. Throughout the period of his employment the Complainant was paid at a rate of €412.00 per week. The Complainant brought a complaint before a Rights Commissioner pursuant to the Organisation of Working Time Act 1997 (the Act) alleging breaches of Sections 11, 12, 13, 14 15, 17 and 21 of the Act. The Rights Commissioner upheld the complaints under Sections 11, 14 and 21 and awarded the sum of €3,000.00.The Complainant appealed the quantum decided upon by the Rights Commissioner and also appealed the findings under Sections 12, 13, 15 and 17 of the Act.
The Complainant submitted a claim under the Act to the Rights Commissioner on 18thNovember 2011.
At the second hearing held on 29thAugust 2013, Mr. Richard Grogan, Solicitor, on behalf of the Complainant withdrew the appeal on the level of quantum decided, and withdrew the appeal of findings under Sections 12, 13 and 17 of the Act. Consequently the only appeal before the Court is the Complainant’s appeal under Section 15 of the Act.
At the hearing on 29thAugust 2013, the Respondent was represented by Mr. Brendan Hyland Solicitor who informed the Court that the Respondent’s business has ceased and all his trucks were repossessed.
Under Labour Court Determination Liam Delaney t/a Liam Delaney Haulage v Mr Zbiginew Debny MWD 133, the Court held the Respondent had failed to produce evidence to counteract the Complainant’s contention that he worked 60 hours per week and accordingly upheld the Complainant’s claim in respect of his minimum wage claim.
Accordingly, by the doctrine ofres judicatathe findings of the Labour Court in the above-mentioned Determination has a binding legal effect in the complaint in the present case. Therefore the Court finds that the Respondent was in breach of Section 15 of the Act. In all the circumstances the Court determinesto award the Complainant a sum of €1000.00 in respect of the breach of Section 15 of the Act, this 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.
Furthermore the Court upholds the Decision of the Rights Commissioner in respect of his Decision where he found that the Respondent was in breach of Sections 11, 14 and 21 of the Act and awarded the sum of €3000.00. Therefore the Court determines that the sum of €4000.00 in total should be paid to the Complainant within six weeks of this Determination.
The Decision of the Rights Commissioner is varied accordingly.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
30th August, 2013______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.