DWT14120

The decision of the Rights Commissioner issued on 10 October 2014. The appeal was filed with the Court on 15 October 2014. The Complainant subsequently withdrew his appeal against the Rights Commissioner’s decision regarding an alleged infringement of Section 17 of the Act. He also withdrew his appeal against the Rights Commissioner’s decision that the Respondent did not infringe the Act by no including a commitment to work on Sunday in the contract of employment. The case came on for hearing on the 10^thDecember 2014.

Background

The Complainant worked for the Respondent as a Chef from 4 May 2012 until 11 April 2014. He made a number of complaints to the Rights Commissioner under the Organisation of Working Time Act 1997.

Complaints

Section 14 Complaint

Section 14 of the Act, in relevant part, states

• 
  (1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely—
  • (a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or

    (b) by otherwise increasing the employee's rate of pay by such an amount as is reasonable having regard to all the circumstances, or

    (c) by granting the employee such paidtimeoff from work as is reasonable having regard to all the circumstances, or

    (d) by a combination of two or more of the means referred to in the preceding paragraphs.

The Rights Commissioner decided that the complaint was well founded and awarded the Complainant compensation in the sum of €1,762.50 made up of €1,462.50 economic loss and €300 compensation for the breach of section 14 of the Act. The Complainant appealed against the compensation awarded for the breach of the Act.

In his submission to the Court the Complainant argued that the Respondent infringed section 14 of the Act on each and every Sunday on which he was required to work. He argued that such a persistent infringement of his entitlement under the Act should not be treated lightly and should attract a level of compensation that is both just and equitable in all the circumstances and that is persuasive and dissuasive of the employer infringing his rights into the future. He argued that compensation of €300.00 was not adequate to that end.

In doing so he drew the Courts attention to the decision of the CJEU inSabine von Colson and Elisabeth Kamann v Land Nordrhein-WestfalenCase 14/83 and Wolfgang Lange v Georg Schunemann GmbH Case C350/99 and to a decision of Hogan J in Browne v Iarnrod Eireann-Irish Rail [2014] IEHC 117. He argued that those cases require the Court to make awards of compensation that are “tangible and significant, without being excessive or even generous. ” Hogan J in Browne v Iarnrod Eireann-Irish Rail [2014]. He argued that the compensation awarded in this case did not meet that standard.

Findings of the Court

The Court notes that the Rights Commissioner decided that the complaint was well founded. In his decision he states“ I find that he [the Complainant] is owed 26 Sundays X 7.5 hours (1/2) = €1462.50 for the economic loss and compensation of €300 for the breach of his rights under this Act.”This suggests that the Rights Commissioner decided that the Respondent infringed section 14 of the Act on all of the Sundays that fell in the relevant period. The Court also notes that the total value of the economic loss suffered by the Complainant was €1462.50. In assessing the level of compensation to award the Complainant for the breach of his rights under the Act the Court must decide on an amount that is just and equitable in all the circumstances. There is no test that the Court can rely on in arriving at that figure. It is a matter of judgement for the Court to apply its expert knowledge in all the circumstances of the case. Mr Grogan, solicitor for the Complainant, was invited to make submissions on how the Court should arrive at a figure for compensation. However he did not identify a test that the Court could apply nor did he identify any other method or authority to which the Court should have regard. Accordingly the Court relied on its expert knowledge in arriving at the level of compensation to be awarded.

In this case the Court finds that the complainant’s statutory entitlements were infringed on 26 occasions in the relevant period. The Rights Commissioner awarded a combined level of compensation of €1,762.50. The Court finds that this sum is not sufficient in all the circumstances of this case. The Court directs the Respondent to pay the Complainant compensation in the sum of €2212.50.

Determination

The appeal is upheld. The Court orders the Respondent to pay the Complainant compensation in the sum of €2212.50 which sum includes the economic loss decided by the Rights Commissioner and €750.00 compensation for the infringements of section 14 of the Act. The decision of the Rights Commissioner is varied accordingly.

The Court so determines.

Section 12

Section 12 of the Act, in relevant part, states

• (1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

The Rights Commissioner decided as follows

“I find that he[ the Complainant] did not get proper breaks in this employment and the employer has breached Sec 12 of the Act. I award compensation of €350.00”

The Complainant appealed against the quantum awarded by the Rights Commissioner. He stated that the entitlement to breaks under Section 12 gives effect to Council Directive 93/104/EC of November 23, 1993 concerning certain aspects of the organisation of working time. He argued that the provisions of breaks is an important matter of safety and health at work and is a fundamental right of workers in E.U. law.

He argued that a breach of his entitlement under the Act should not be treated lightly and should attract a level of compensation that is both just and equitable in all the circumstances and that is persuasive and dissuasive of the employer infringing his rights into the future. He argued that compensation €350.00 was not adequate to that end.

In doing so he drew the Courts attention to the decision of the CJEU inSabine von Colson and Elisabeth Kamann v Land Nordrhein-WestfalenCase 14/83 and Wolfgang Lange v Georg Schunemann GmbH Case C350/99 and to a decision of Hogan J in Browne v Iarnrod Eireann-Irish Rail [2014] IEHC 117. He argued that those cases require the Court to make awards of compensation that are “tangible and significant, without being excessive or even generous. ” Hogan J in Browne v Iarnrod Eireann-Irish Rail [2014]. He argued that the compensation awarded in this case did not meet that standard.

He argued that a sum of between five and ten weeks wages would be a more appropriate level of compensation.

Findings of the Court

The Court considered the Complainant’s submissions on this point. The Court was hindered by the absence of any evidence of the frequency with or degree to which his rights were infringed. The Rights Commissioner’s decision is silent on this point. In the summary of the Complainant’s evidence to the Rights Commissioner it states that he “took breaks when he could but regularly had to eat his meals while working”. That summary of the evidence before the Rights Commissioner is of no assistance to the Court in addressing the matter under appeal. The written submission to the Court on this point was of little assistance. It states “ The employee in this case took breaks when he could but the employee regularly had to eat his meals while working. He did not have appropriate Section 12 breaks. Again we are contending that compensation of just over half a week’s wages would not be reasonable for the breach of a fundamental right.” The submission says nothing further on this point. No evidence of the frequency or degree of the infringement of Section 12 was presented to the Court.

The Court therefore has no evidence upon which it can review the level of compensation awarded in this case. The Act requires that the Court make an award that is just and equitable in all the circumstances. However the Court was not made aware of all of the circumstances by the Complainant. In the absence of such evidence the Court cannot decide whether the level of award decided upon by the Rights Commissioner was just and equitable in all the circumstances of the case. And as all the circumstances of the case were not opened to the Court at the appeal hearing it cannot make a decision on what would be just and equitable in this case. Accordingly the Court must conclude that the basis for the appeal on this point has not been made out.

Determination

The appeal is not allowed. The decision of the Rights Commissioner is affirmed. The Court so determines.

Section 19

Section 19 of the Act in relevant part states

• (1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—
  • • (a) 4workingweeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

      (b) one-third of aworkingweek for each month in the leave year in which he or she works at least 117 hours, or

      (c) 8 per cent of the hours he or she works in a leave year (but subject to a maximum of 4workingweeks):

    
    
    Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.
  
  (2) A day which would be regarded as a day of annual leave shall, if the employee concerned is ill on that day and furnishes to his or her employer a certificate of a registered medical practitioner in respect of his or her illness, not be regarded, for the purposes of this Act , as a day of annual leave.

  (3) The annual leave of an employee who works 8 or more months in a leave year shall, subject to the provisions of any employment regulation order, registered employment agreement, collective agreement or any agreement between the employee and his or her employer, include an unbroken period of 2 weeks.

  (4) Notwithstanding subsection (2) or any other provision of this Act but without prejudice to the employee's entitlements under subsection (1) , the reference in subsection (3) to an unbroken period of 2 weeks includes a reference to such a period that includes one or more public holidays or days on which the employee concerned is ill.

  (5) An employee shall, for the purposes of subsection (1) , be regarded as having worked on a day of annual leave the hours he or she would have worked on that day had it not been a day of annual leave.

  (6) References in this section to aworkingweek shall be construed as references to the number of days that the employee concerned usually works in a week.

  Section 20(2) of the Act states

  (2) The pay in respect of an employee's annual leave shall—

  • (a) be paid to the employee in advance of his or her taking the leave,

    (b) be at the normal weekly rate or, as the case may be, at a rate which is proportionate to the normal weekly rate, and

    (c) in a case in which board or lodging or, as the case may be, both board and lodging constitute part of the employee's remuneration, include compensation, calculated at the prescribed rate, for any such board or lodging as will not be received by the employee whilst on annual leave.

The Rights Commisioner decided that the complaint was well founded. He states “I find that he was not paid the correct rate of pay for the holidays as stipulated in S.I. 475/1997 and Sec.20. I find that he is owed €200 X 4 =€800.00 for the economic loss. I award €400.00 compensation for the breach of his rights under this Act.”

The Complainant states that the entitlement to annual leave is a fundamental social right and a matter of safety and health set out in both Irish and E.U. law. He argues that the infringement of his rights under the Act to paid annual leave was not adequately compensated in the Rights Commissioner’s decision.

Findings of the Court

The Court was notified by letter by the Liquidator that one of the former directors of the Company confirmed that “staff were generally paid to work on their holidays and bank holidays rather than taking them off”

In that context the Court takes the view that there was a systemic practice of depriving the Complainant of his entitlement to annual leave. It appears to have been a deliberate policy to substitute pay for time off a practice that is not permitted in law and that has been consistently rejected by this Court and the CJEU.

The Court therefore takes the view that such a systemic practice, that was not put in evidence to the Rights Commissioner, but was put in evidence by the Liquidator, warrants a review of the level of compensation awarded in this case.

The Court is required to make an award that is just and equitable in all the circumstances of the Case. The Court measures that figure at €1,600. Accordingly the award of €400.00 compensation made by the Rights Commissioner is varied accordingly.

Determination

The Court increases the award of compensation made by the Rights commissioner from €400.00 to €1600.00 which together with the economic loss of €800.00 makes for a total award under this Section of €2,400.00. The decision of the Rights Commissioner is varied accordingly. The Court so determines.

Section 21

Section 21 of the Act states

• 
  (1) Subject to the provisions of this section , an employee shall, in respect BB.159 of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—
  • • (a) a paid day off on that day,

      (b) a paid day off within a month of that day,

      (c) an additional day of annual leave,

      (d) an additional day's pay:

    
    
    Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection , be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.

“I find that he was not compensated for the Public Holidays and that he is owed 130 per day X 5 days =€650.00“

The Complainant appealed against the decision on the grounds that the Rights Commissioner made no award of compensation for the infringement of his rights under the Act. He noted that the Act provides for an award that is just and equitable in all the circumstances of the case. He argued that the infringement of his entitlement was itself an offence and that it was not just and equitable to make no award under that heading.

Findings of the Court

The Court finds merit in the Complainant’s case. The respondent infringed the Complainant’s rights under the Act. The Court was made aware by letter from the Liquidator that it was the practice in the Respondent Company to pay staff to work on public holidays rather than allow them avail of the time off. No premium was paid for work performed on those days.

Accordingly the Court finds that there was a systemic practice in the Company to deprive staff of their entitlements under Section 21. The Court finds that such a practice must be taken into account in determining an award that is just and equitable in all the circumstances. The Court also notes that the Company is now in liquidation and no complaint was brought while it was operating as a going concern. Accordingly the extent to which any award the Court makes can dissuade the Respondent from repeating such an infringement is limited and must be taken into consideration also.

In all the circumstances of the case the Court finds that compensation in the total sum of €1000.00 for the infringement of the Complainant’s rights under Section 21 is just and equitable.

Determination

The Court orders the Respondent to pay the Complainant compensation in the sum of €1,000.00 which amount includes €650.00 for the economic loss he incurred in respect of the four public holidays for which he was not paid a premium for working on those days. The decision of the Rights Commissioner is varied accordingly. The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
CO'R______________________
22 December, 2014Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary.