FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : HMSHOST IRELAND LTD (REPRESENTED BY PURDY FITZGERALD SOLICITORS) - AND - IRONA KOSESKOVA (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Mr Duffy Employer Member: Ms Cryan Worker Member: Ms Ni Mhurchu |
1. Appealing Against A Rights Commissioner's Decision R-127009-Wt-12, R-127010-Wt-12/Eos
BACKGROUND:
2. The Worker appealed the Rights Commissioner's Decision to the Labour Court on 10th July, 2013. A Labour Court Hearing took place on 19th September, 2013. The following is the Labour Court's Determination:
DETERMINATION:
This is an appeal by Irina Koseskova against a decision given by a Rights Commissioner in her claim under the Organisation of Working Time Act 2003. The claims related to contraventions of s.12 of the Act.
The Rights Commissioner found that the complaint was well founded but that the contraventions that occurred were minor in nature. She awarded the Claimant compensation in the amount of €400.
The Claimant appealed against the quantum of the award. There was no cross-appeal.
Conclusion
The Claimant is employed by the Respondent as a catering assistant. Records relating to the times at which she clocked in and out for breaks show that on a significant number of occasions the actual break taken fell short of the period prescribed by the statute by some minutes. There is no suggestion that the Respondent directed the Claimant to cut her breaks short or that she was otherwise denied the opportunity to take her full break. In these circumstances the Court is forced to the conclusion that where the Claimant did not avail of the full break period it was through her own choosing.
Nonetheless the law requires the Respondent to ensure that the statutory breaks are taken in full and accordingly the Respondent was in breach of its statutory duty in failing to ensure that the Claimant availed of the full period prescribed by the Act. The Respondent is not denying liability in this case.
In all the circumstances of the case the Court cannot disagree with the conclusion reached by the Rights Commissioner in finding that the contraventions were minor in nature. Nor can the Court see any reasonable basis upon which it could interfere with the level of the award made by the Rights Commissioner.
The within appeal is disallowed and the decisions of the Rights Commissioner is affirmed.
Signed on behalf of the Labour Court
Kevin Duffy
20th September, 2013______________________
JMcCChairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.