FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : ALLIED SECURITY NETWORK LIMITED (IN LIQUIDATION) - AND - MR THOMAS MURPHY DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner's Decision R-102471-WT-10/DI.
BACKGROUND:
2. The Worker 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 21st May, 2013. The Court heard the appeal on the 1st April, 2014. The following is the Determination of the Court:
DETERMINATION:
The case comes before the Court under Section 28(1) of the Organisation of Working Time Act 1997 (the Act). Mr Thomas Murphy, (the Complainant) is appealing against Rights Commissioner Decision R-10247-WT-10/DI issued on 26 July 2012. The appeal was filed with the Labour Court on 20thAugust 2012. The Rights Commissioner decided that complaints that Allied Security Network Limited (the Respondent) infringed sections 14 and 21 of the Act in respect of his employment were not well founded. He has appealed to this Court against those decisions. The case originally came before the Court on 29 May 2013. Part of the business of the Respondent Company had been taken over by another company on 1 May 2010. However it continued to trade in its own name after that date. The Complainant issued proceedings on the same facts against both entities. When the matter originally came before the Court it was adjourned to allow the parties submit documents to assist the Court identify the correct defendant in this case. The case came before the Court again on 1 April 2014. At that time it was accepted that the Respondent in this case was the correct defendant and the case proceeded on that basis. At the time of the Hearing the Respondent Company was in liquidation. The Liquidator was notified of the dates and times of the hearing. The Liquidator did not enter an appearance or make submissions regarding the issues before the Court.
Background
The Complainant worked for the Respondent from 21 July 2003. Part of the business of the Respondent Company was acquired by another entity on 1 May 2010. The Complainant understood that his employment had transferred to the new entity. He continued working without pay for a number of months until he resigned from his employment on 16 September 2010. The Complainant states that the Respondent Company infringed sections 14 and 21 of the Act with regard to his employment.
Complainant’s Case
Section 14
Section 14 of the Act 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.
(3) For the purposes of proceedings under Part IV before a rights commissioner or the Labour Court in relation to a complaint that this section has not been complied with in relation to an employee to whom this subsection applies (“the first-mentioned employee”), the value or the minimum value of the compensation that a collective agreement for thetimebeing specifies shall be provided to a comparable employee in respect of his or her being required to work on a Sunday shall be regarded as the value of compensation to be provided under this section to the first-mentioned employee that is reasonable having regard to all the circumstances:
Provided that if each of 2 or more collective agreements for thetimebeing specifies the value or the minimum value of the compensation to be provided to a comparable employee to whom the agreement relates in respect of his or her being required to work on a Sunday and the said values or minimum values are not the same whichever of the said values or minimum values is the less shall be regarded, for the purposes aforesaid, as the value of compensation to be provided under this section to the first-mentioned employee that is reasonable having regard to all the circumstances.
(4) Unless the fact of such a value being so specified has come to the notice of the rights commissioner or the Labour Court, as the case may be, it shall be for the person who alleges in proceedings referred to in subsection (3) that a value of compensation of the kind referred to in that subsection is specified by a collective agreement mentioned in that subsection to show that, in fact, such a value is so specified.(5) In subsection (3) “comparable employee” means an employee who is employed to do, under similar circumstances, identical or similar work in the industry or sector of employment concerned to that which the first-mentioned employee in subsection (3) is employed to do.
(6) References in this section to a value or minimum value of compensation that is specified by a collective agreement shall be construed as including references to a value or minimum value of compensation that may be determined in accordance with a formula or procedures specified by the agreement (being a formula or procedures which, in the case of proceedings referred to in subsection (3) before a rights commissioner or the Labour Court, can be readily applied or followed by the rights commissioner or the Labour Court for the purpose of the proceedings).
- (a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or
The Complainant states that he worked an average four hours each Sunday; that the requirement to so do was not otherwise taken into account in the determination of his pay and that he was not compensated for being required to so do by the Respondent in the manner set out in the statute. He is seeking compensation for the underpayment involved and for the infringement of the Act. He states that he worked each Sunday in the relevant period.
Respondent’s Case
The Respondent did not attend or make submissions to the Court.
Findings of the Court
In the absence of any evidence to the contrary the Court finds that the complaint is well founded. The Court notes that the Complainant worked 4 hours each Sunday in the relevant 20 week period. The Complainant states that he was paid €10 per hour and that this amount contained no premium for the requirement to work on Sunday. The Court notes that the standard Sunday premium payment in the Security Industry at that time was €16.80. This amounts to a total underpayment of €544 in the relevant period. The Court has taken this underpayment into account in determining the remedy in this case.
Remedy
- Section27(3) of the Act states
- (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,
- (a) declare that the complaint was or, as the case may be, was not well founded,
- (3) A decision of a rights commissioner under subsection (2) shall do one or more of the following:
Determination
Having regard to all of the circumstances in this case the Court declares that the complaint is well founded and requires the Respondent Company to pay the Complainant compensation in the sum of €600
The Court so determines.
Section 21
The Complainant states that he was not afforded the provisions of the Act in respect of the public holidays that fell in the relevant period.
The Respondent did not attend Court or make submissions on this matter.
Findings of the Court
Section 21 of the Act, in relevant part 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.- (a) a paid day off on that day,
Based on the uncontested evidence of the Complainant the Court finds that the complaint is well founded.
Remedy
In accordance with Section 27(3) of the Act the Court requires the Respondent to pay the Complainant compensation in the sum of €260 which amount the Court considers just and equitable having regard to all the circumstances of this case.
Determination
The Court finds that that the complaint is well founded. The Court orders the Respondent to pay the complainant compensation in the sum of €860 . The Court so determines
Signed on behalf of the Labour Court
Brendan Hayes
24th September 2014______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.