FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : KEVIN BLAKE TRADING AS SPAR - AND - KRYSZTOF MALEWICZ (REPRESENTED BY JONES SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Mr McCarthy |
1. Appeal against Rights Commissioner's Decision r-130157-wt-13/EH.
BACKGROUND:
2. The Employer appealed the Rights Commissioner’s Decision dated 6th June, 2013 to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997 on the 17th January, 2014. The Court heard the appeal on the 25th April, 2014.
DETERMINATION:
The Complainant brought a complaint before a Rights Commissioner pursuant to the Organisation of Working Time Act 1997 (the Act) alleging breaches of Section 12 and 20 of the Act. The Rights Commissioner held that the Act had been breached and awarded the Respondent to pay €400 in compensation to the Complainant.
The Respondent appealed the Decision to this Court.
For ease of reference the parties are referred to as they were at first instance. Hence Mr Krysztof Malewicz is referred to as “the Complainant” and Kevin Blake t/a Spar is referred to as “the Respondent”.
The Complainant submitted the claim under the Act to the Rights Commissioner on 10thJanuary 2013.
Background
The Complainant has been employed by the Respondent since 19thOctober 2005. He is employed as a Supervisor. His shift hours vary - 2.00pm to 10.00pm; 3.00pm to 10.00pm; or 9.00am to 3.00pm. He works five or six days per week.
Section 12 Claim
Mr. James Jones, Jones Solicitors on behalf of the Complainant, submitted that the Complainant did not always receive his meal break as it was interrupted on occasions by work demands. He stated that these situations arose when he was on the 2.00pm – 10.00pm or the 3.00pm – 10.00pm shifts, but never on the 9.00am – 3.00pm shift.
In his evidence to the Court the Complainant stated that his breaks times were rostered by management on the early shift and he had no difficulties in receiving his break during that shift. However, on the evening shifts he had responsibility for the allocation of breaks for staff on duty, including his own breaks. He submitted that there were occasions, a couple of times per week on average, when his break would be interrupted for 5 or 10 minutes, thereby preventing him from availing of the full period of his break due to work requirements.
In response to the claim, the Respondent stated that it had changed its system of recording breaks since the claim was submitted under the Act and now employees are required to sign a from indicating that they received their break entitlements. Furthermore, the Respondent stated that as the Complainant was responsible for allocating his own break period, he had total flexibility to reschedule his break if it was interrupted. The Respondent also stated that the Complainant had never brought the matter to management’s attention.
Section 20 Claim
Mr. Jones submitted that the Respondent was in breach of the Act as the Complainant did not receive payment when he went on annual leave. He was paid a weekly premium payment of 8% for all hours worked each week, but no holiday pay when going on leave. Mr. Jones gave details of the annual leave affected within the relevant time period.
The Respondent acknowledged that it paid the Complainant an allowance which it contended was in compliance with Section 20(3) of the Act. However, the Respondent informed the Court that since March 2013 a new system had been introduced to ensure that employees receive their holiday pay when going on leave.
The Court’s Findings
Having considered the evidence given by the Complainant and the submissions made by both parties the Court is satisfied on balance that the Complainant had the opportunity to avail of his breaks to which he was entitled. In these circumstances the Court finds that the complaint under Section 12 is not well founded and therefore the Respondent’s appeal of this part of the Rights Commissioner’s Decision succeeds. The Court has considered the positions of both parties on the claim under Section 20 of the Act. The Respondent’s defence to the claim is that an element was included in the Complainant’s basic pay to include pay for holidays.
This Court has previously decided that the obligation to provide holidays with pay cannot be discharge by including an element in basis pay and that any agreement or contract which purports to authorise such an arrangement is to that extent void. See for example, the Decision of this Court in Determination DWT 0043,O’Donnell v Wolf Security[2001] ELR 136, Determination DWT017Martin Tracey v Cementation (Ireland) Ltd.
The fact that the type of arrangement relied upon by the Respondent does not meet the requirements of the Directive and the Act has been put beyond doubt by the Decision of the CJEU in joined casesC-131/04, C. D. Robinson-Steele v R. D. Retail Services Ltd, C-257/04 Michael Jason Clarke v Frank Staddon LtdandJ. C. Caulfield and Others v Hanson Clay Products LtdECR 1 0253. In that case the Court of Justice made it clear that the relevant obligation imposed on an employer under the Directive can only be met by paying an employee in respect of holidays at the time the holidays are taken. That Decision is absolutely binding on this Court. Consequently the defence to the within claim relied upon by the Respondent is unsustainable in law.
Accordingly, the Court must hold that as the Complainant was not provided with paid annual leave at the time he actually took his leave the complaint under Section 20 is well founded. In deciding on the redress to award, the Court notes that the Complainant was granted his annual leave and he did not incur a loss of pay. Furthermore the Court notes that the Respondent had rectified the situation to ensure that it is now in compliance with the law.
In these circumstances the Court is satisfied that an award of €250.00 adequately meets the criteria enunciated by the CJEU inVon Colson & Kamann v Land Nordrhein – Westfalen[1984] ECR 1891.
Determination
The Court determines that (i) the complaint under Section 12 is not well founded, (ii) the complaint under Section 20 is well founded.
Therefore, the Court awards the Complaint the sum of €250.00 to be paid within six weeks of the date of this Determination.No element of the award relates to remuneration.
Therefore the Rights Commissioner’s Decision is varied accordingly.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
16th May, 2014______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.