DWT14123

• 1.This is an appeal by Mr Marciniuk (the Complainant) under Section 28(1) of the Organisation of Working Time Act 1997, (the Act) against the decision of the Rights Commissioner that a complaint under Section 26 of the Act was not well founded and against the quantum awarded by the Rights Commissioner in respect of well-founded complaints under Sections 14, 18 and 21 of the Act.

  2.The Rights Commissioner issued his decision on the 11^thAugust 2014. The Complainant filed an appeal with the Labour Court on the 19^thSeptember 2014. The Case came on for hearing before the Court on the 18^thNovember 2014.

  3.The facts of the Case are not in dispute. The Respondent operates a leisure centre. In December 2008 it employed the Complainant as a Part Time Leisure Attendant on a zero hour’s contract. The Complainant was paid between €161.16 and €300 per week depending on the hours worked and the nature of the work he performed.

  4.On the 15 October 2013 the Complainant made a complaint to the Rights Commissioner alleging that the Respondent infringed sections 14 and 21 of the Act. On the 3^rdFebruary 2014 he submitted a fresh complaint to the Rights Commissioner in which he alleged that the Respondent had infringed sections 14, 18, 21 and 26 of the Act. Finally on the 1^stApril 2014 he submitted a further complaint to the Rights Commissioner in which he alleged that the Respondent infringed sections 14, 19 and 21 of the Act.

  5.All of the complaints were heard together by the Rights Commissioner. Having investigated the complaints the Rights Commissioner decided that the complaints under sections 14, 18, 19 and 21 of the Act were well founded. He found that the complaint under section 26 of the Act was not well founded.

  6.The Rights Commissioner awarded the complainant his economic loss in each case which in total amounted to €949.42 in total. The Rights Commissioner went on to award the Complainant compensation in the sum of €300 “for breach of his rights under this Act which is to act as a deterrent against future infractions”.

Complainant’s Position

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  7.The Complainant made the following submission to the Court
  • a.In October 2013 the Claimant in good faith issued valid claims under the Organisation of Working Time Act 1997.

    b.Claims under Sections 14 and 21.

    • i.Originally the Claimant was employed to work weekends only. The Claimant used to work almost every Saturday and teach swimming. He used to be scheduled as a teacher and have his own class to teach. This was paid at a higher rate of pay. After the complaints issued the employee was either not scheduled to work Saturdays or was rostered to cover for other teachers, He was not rostered to teach swimming classes and as a result the Claimant suffered a considerable financial loss.

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  8.The Respondent made the following submission to the Court
  • a.The Employee alleges that he was penalised by the Employer as a result of his various claims before the Rights Commissioner. This claim is rejected by the Employer. It is submitted by the Employer that the Employee worked primarily as a Lifeguard. There were 6 to 7 lifeguards employed by the Employer at any time. All work is rostered on a fair basis by the Assistant Manager. The Assistant Manager did not know about the Employee’s claims before the LRC and therefore could not have been influenced by this.

    b.It is further submitted that when the Employee started with the Employer he already had another job as a van driver and was provided with weekend work by this Employer to facilitate this. Following on from this, the Employee then took up social welfare and advised the Employer that he could only work restricted hours and again was facilitated by the Employer in this regard. Though the Employee claims he was excluded from Saturday work it is submitted that the Employee was rostered to work for 7 Saturdays in the period being claimed, same being November and December 2013 and January 2014. It should also be noted that in the month of December swimming lessons cease and therefore there is less of a requirement for lifeguards. It referred the Court to the Average Hours allocated to the Complainant. In a graph supplied to the Court it disclosed that he was allocated an average of 16 hours per week. It argued that in making his claim for penalisation the Employee failed to establish that his Saturday rosters were less than his colleagues or that his hours of work were less and proffered no evidence to substantiate his claim of penalisation.

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  9.Section 26 of the Act states
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    —(1) An employer shall not penalise an employee for having in good faith opposed by lawful means an act which is unlawful under this Act

    The complainant in good faith in October 2013 submitted complaints to the Rights Commissioner regarding alleged infringements of Sections 14 and 21 of the Act. He states that thereafter his hours were reduced and he was not assigned Saturday swimming classes that attract a premium rate of pay. The Complainant was invited by the Court to set out the evidence on which he based that assertion. He stated that his pay slips would demonstrate that his hours and weekly income were reduced in the period after he filed a complaint with the Rights Commissioner. He was invited by the Court to put his pay slips in evidence in support of that assertion. He did not do so. He was then invited to set out the number of Saturdays upon which he worked prior to the date on which he filed the complaint and the number in the period after that date. He did not do so. He was then invited to set out the number of swimming classes he taught in the period prior to and subsequent the date on which he filed a complaint with the Rights Commissioner. He did not do so. Mr Nowak, on his behalf, stated that this information was in the peculiar knowledge of the Respondent and that the Complainant should not be required to provide evidence of information that was not in his possession.

    The Court finds that in making out a complaint of penalisation the Complainant is required to give detail of the detriment suffered by him. Mr Nowak told the Court that the details of the Complainant’s working time and premium earnings could be established from his pay slips. He also stated that his client was provided with pay slips at all material times. Accordingly the Court does not accept Mr Nowak’s contention that the detail regarding the detriment suffered by the complainant is in the peculiar knowledge of the Respondent. The Court finds that the Complainant was in possession of all of the information necessary to make out his case before the Court and that he failed to do so. He merely asserted that he was provided with less work and or work of a type that attracted a lower pay rate after he submitted a complaint to the Rights Commissioner. It is a well settled view of this Court that mere assertion does not amount to evidence. This is particularly the case where the Complainant is in possession of the information necessary to make out a case and fails or refuses to put it in evidence in support of his complaint.

    In this case the Complainant had documentary evidence of the hours he worked and the pay he received both before and after he submitted a complaint to the Rights Commissioner in October 2013. He was therefore in possession of the evidence necessary to ground a complaint. He did not however put the pay slips in evidence and offered nothing more than mere assertion in support of the complaint. A mere assertion is not a sufficient basis upon which the make out a claim of penalisation.

    Accordingly the Court determines that the Complaint of penalisation was not made out by the Complainant. The decision of the Rights Commissioner in respect of the Complaint under section 26 of the Act is affirmed. The appeal is not allowed.

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  10.The Complainant appealed against the level of compensation awarded by the Rights Commissioner in his decision. In support of his position he referred the Court to the decision inE Smith School t/a The High School and Mr Sean Mc Donnell DWT1411in which this Court said
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    “The redress available to a successful claimant under the Act is governed by s.27(3) thereof, as follows: -
    • (3) A decision of a rights commissioner under subsection (2) shall do one or more of the following:
      • (a) declare that the complaint was or, as the case may be, was not well founded,
      (b) require the employer to comply with the relevant provision,
      • (c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the employee's employment, and the references in the foregoing paragraphs to an employer shall be construed, in a case where ownership of the business of the employer changes after the contravention to which the complaint relates occurred, as references to the person who, by virtue of the change, becomes entitled to such ownership.
    This subsection makes it clear that the Claimant is not limited to recovering the economic or monetary value of the payments withheld. A Rights Commissioner, and this Court on appeal, may award compensation of such amount as is just and equitable having regard to all the circumstances subject to the upper limit of two years pay. All the circumstances include both aggravating and mitigating factors. It is thus appropriate for the Court to taken into account the duration over which the Claimant’s rights were infringed, the circumstances in which the Claimant was deprived of his right to payment for public holidays, the response of the Respondent when the claim was first raised and the degree of inconvenience suffered by the Claimant in vindicating his rights. It is clear, however, that the Court cannot award redress for those infringements of the Claimant’s rights that occurred outside the statutory time-limit.

    In all the circumstances of this case the Court is satisfied that in addition to the arrears of wages already paid to him the Claimant is entitled to an award of general compensation. The Court measures the amount that is just and equitable at €1,500. The Respondent is directed to pay the Claimant compensation in that amount in addition to all payments previously paid. For the avoidance of doubt this amount is not in the nature of remuneration and should not be treated as such for the purposes of tax or other deductions.

  
  11.The Complainant further argues that the Court is required to set out the essential rationale on foot of which the decision is taken. He referred the Court to the decision of the Supreme Court in Meadows v Minister for Justice Supreme Court 419/03, Mallak Cae v Minister for Justice, Supreme Court 339/11, Shazia Parhiar v Minister for Justice 141JR/2014 High Court,

  12.Mr Nowak, representing the Complainant did not set out the amount of compensation he was seeking. He stated that the amount awarded by the Rights Commissioner was inadequate but made no submission as to an amount he considered would be adequate in the circumstances of this case.

  13.He made a number of arguments that are set out in his submission as follows

  • a.In respect of breaches of Section 21 and 14, it is respectfully submitted that the aggravating factors are:
    • i.The separate claims were issued in October 2013, February, April 2014 and the issues were not addressed by employer at any stage. The Claimant has still not received his claimed Public Holiday, or Sunday premia entitlements. And additional claims are before the LRC regarding the same issues.

      ii.The Claimant has suffered a great deal of inconvenience by having to attend two hearings,

      iii.In the case of DWT1411 the employer paid the economical loss once the Claimant had issued his complaints, this is not the case in this instance.

    b.In respect of Section 18 it is respectfully submitted that the aggravating factors are:
    • i.The Claimant was given no or little work in the months of August, September and October 2013. The Claimant enquired about that in September 2013 and he received a letter as attached, this issue was not followed up by the employer. At the Rights Commissioner hearing the employer was trying to justify the fact that no work was provided due to some imaginary illness/injury. The Claimant provided documents to proof when the sick leave was taken and the employer and the Rights Commissioner were provided with same. The aggravating factor is that the employer told untruths and the compensation has to take that into account.
  14.Mr Nowak made no further submissions to the Court.

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  15.Mr Hutchinson, Solicitor, for the Respondent stated that his client accepted the Rights Commissioner’s decisions in all cases and had paid the Complainant the full amount of the compensation awarded. He said the monies were paid by electronic funds transfer into the claimant’s bank account.

  16.He said that the level of compensation of €300 awarded to the Employee for breaches of the Organisation of Working Time Act is fair and reasonable in the circumstances, giving due consideration to the nature of the breaches and to the fact that the Employer did not seek to strenuously deny such breaches, except where there was some uncertainty around the matter. The Employer sought to act in good faith at all times in seeking to resolve any breaches and, in advance of any hearing, had been corresponding with NERA to ascertain where possible breaches had occurred and to rectify same. All payments owing to the Employee have been made and were made without undue delay. The Employer also endeavoured to make payments in relation to public holidays (section 21 of the Act) when they became aware of the breach which was in advance of the Hearing before the Rights Commissioner. He said the Employer has always sought to be compliant with all employment legislation, of which there is an inordinate amount. He therefore submitted that in such circumstances the compensation level decided upon by the Rights Commissioner is reflective of the nature of the breaches and of the Employers approach to the matter and further submitted that the sum has acted as a deterrent against future infractions

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  17.Section 27(3) of the Act states “
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    (3) A decision of a rights commissioner undersubsection (2)shall do one or more of the following:

    (a) declare that the complaint was or, as the case may be, was not well founded,

    (b) require the employer to comply with the relevant provision,

    (c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the employee’s employment……..”

    In this case the Rights Commissioner found that the Respondent infringed the various sections of the Act. He awarded the Complainant his economic loss in each and awarded a further €300 compensation for the infringements involved. Mr Nowak argues that the level of compensation awarded was not adequate and should be increased. The Respondent argues that the level of compensation is just and equitable and has acted as a deterrent.

    Regarding sections 14 and 21 of the Act the Complainant argues that he made complaints to the Rights Commissioner on three occasions viz. October 2013, February and April 2014. He argues that the employer failed to correct his behaviour prior to the matter coming before the Rights Commissioner. The Respondent argues that it was in contact with NERA to establish its obligations under the Act and corrected its behaviour when it became aware that it was not compliant. It further states that it did not offer any defence against those complaints that it was satisfied were well founded.

    The Court finds that an employer has a statutory entitlement to contest a complaint made by a worker. In this case the Complainant submitted successive complaints to the Rights Commissioner. The Employer took reasonable steps to establish its obligations under the Act and acknowledged its shortcomings when the case came on for hearing. The case was heard on 15 May 2014 seven months after the complaints were made. When the case came on it conceded that the complaint under section 21 was well founded. It did however make out a case, albeit it unsuccessfully, against the section 14 complaint.

    The Court finds that the Respondent should have been aware of it obligations under Section 21 of the Act and should have moved to address the matter at the first opportunity. It did not do so and deprived the Complainant of his statutory entitlement for a period of time that was not justified. Accordingly the Court takes the view that the level of compensation in this case should be adjusted to reflect that failure. The Court notes that the Respondent delayed paying the Complainant his entitlement of €225.62. While this is not a very large amount of money it was an entitlement that was denied to the Complainant. The Court accordingly takes the view that he should be compensated for that unnecessary delay. However that level of compensation should be proportionate to the total sum owed to the Complainant. Accordingly the Court considers compensation in the sum of €100, which equates to close to 50% of the total sum owed to the Complainant to be fair and just and all the circumstances of this case.

    The Court finds that the Respondent made out a fair case before the Rights Commissioner in respect of the complaint under section 14 of the Act. That is the Respondent’s entitlement. The matter was decided against the Respondent. However the Court is not minded to penalise a Respondent for availing of its statutory right to enter a bona fide defence against a complaint under the Act. In this case therefore the Court finds that the Rights Commissioner’s decision is just and equitable in all the circumstances and determines accordingly.

    The Complainant submitted a complaint under Section 18 of the Act. The Respondent entered a defence. The Rights Commissioner preferred the Complainant’s evidence and awarded the Complainant the sum of €318.53.

    The Rights Commissioner did not specify the amount of compensation he awarded under this section for the infringement of the Complainant’s rights under the Act. Instead he awarded a total of €300 compensation for the combined infringements of sections 14, 18 and 21 of the Act. This amounts to €100 for each of the infringements. The Court has already stated that the infringement of Section 21 of the Act should be increased by €100 bringing the sum total to €200 in respect of that infringement. The Court takes a similar view in respect of the infringement of section 18 of the Act. That brings the total compensation for the infringements of Sections 18 and 21 of the Act to €400. The Court takes the view that the Respondent was entitled to defend the complaint under section 14 of the Act and should not be penalised for so doing. Accordingly the Court finds no basis for adjusting the compensation of €100 awarded by the Rights Commissioner in respect of that breach. The Court therefore increases the total award of compensation to €500 and varies the Rights Commissioner’s decision accordingly,

    Determination

    The Court rejects the appeal against the Rights Commissioner’s decision under section 26 of the Act. The Court increases the compensation awarded by the Rights Commissioner for infringements of Sections 14, 18 and 21 of the Act from €300 to €500 and varies the decision of the Rights Commissioner accordingly.

    The Court so determines