FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : CHICKEN & CHIPS LTD T/A CHICKEN HUT - AND - DAWID MALINOWSKI DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner's Decision r-137319,137320,137321,137325-wt-13/EH.
BACKGROUND:
2. The Employer appealed the Rights Commissioner's Decision to the Labour Court on 12th August, 2014. A Labour Court Hearing took place on 11th November, 2014. The following is the Labour Court's Determination:
DETERMINATION:
This is an appeal by Chicken and Chips Ltd (the Respondent / Appellant) against Rights Commissioner Decision No r-137319-wt-13, 137320 wt-13 137321, wt-13 and 137325 wt-13 issued on 4 July 2014. The rights commissioner found that complaints under sections 14, 19 and 21 of the Organisation of Working Time Act 1997 (the Act) filed by Mr David Malinowski (the Complainant) were well founded. He awarded the Complainant €471.52 for the economic loss he incurred and €500 compensation for the breach of his rights under the Act. The Respondent appealed against that decision to this Court. The case came on for hearing on the 11thNovember 2014.
The Appellant operates a fast food store in which the Complainant was employed as an Assistant from 16 May 2011 until 18 August 2013. He was paid €8.65 per hour when he commenced employment.
Complaints
Section 14 Sunday Working
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.
- (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 in the period 4 March 2013 to 18 August 2013 he worked a total of 22 shifts on Sunday. He noted that in his submission to the Rights Commissioner he had stated that he worked a total of 10 shifts over that period of time. He states that that figure was in error. He submits that he has since revisited the documentation at his disposal and in now in a position to correct that it as detailed above. He states that he worked a total of 180 hours on Sunday in the relevant period. He based this calculation on the rosters he worked over that time. He argues he was not paid a Sunday premium for those hours. He states that the requirement to work on Sunday was not otherwise taken account of in the determination of his pay. He argues that the Respondent infringed section 14 of the Act.
The Respondent states that the Complainant was paid in excess of €8.65 per hour for all hours worked. It argues that this amounts to reasonable compensation within the meaning of the Act. The Respondent submitted copies of pay slips in support of its contention.
Findings of the Court
The Court examined the documents supplied by both parties to this dispute. The Complainant submitted 2 pay slips supplied to him by the Respondent. They related to week commencing 2 June 2013 and 23 June 2013. The Respondent supplied pay slips for a number of random weeks over the relevant period. The pay slip for week commencing 23 June 2013 was included in the documents each party submitted to the Court.
On examining them the Court notes that there are a number of discrepancies between the two pay slips.
HeadingEmployee Pay SlipEmployer Pay Slip
Works Number 8 1
Period 22 22
PRSI Class AO AL
Rate 8.65 8.66
Hours 25 42.5
Basic Pay 216.25 365.89
Hol/Bous/Other 0 86.66
Total Pay 216.25 452.55
Total Gross 216.25 452.55
PAYE 0 48.04
USC 4.79 18.58
PRSI ee 0.00 18.10
Payment 211.46 367.83
PRSI er 9.19 48.65
Cumulative
Gross 4645.05 9639.39
PAYE 0 531.54
USC 100.88 386.56
PRSI ee 0 332.57
PRSI er 197.41 950.11
Insurable Weeks 22 22
The Court finds that these pay slips cannot be reconciled. The Court further finds that the explanations offered by the Respondent to queries regarding from the Court in the course of the hearing were not convincing. The Court found the Complainant credible and hones and on the balance of probabilities the Court prefers his evidence and submissions in over that of the Respondent which was evasive and contradictory.
The Court finds that the Complainant worked on 22 Sundays in the relevant period. The Court finds that the Respondent presented no coherent evidence that it made provision in the Complainant’s rate of pay for the requirement to work on Sunday. Accordingly the Court finds the complaint is well founded.
The Court notes that the Complainant worked a total of 197 Sunday hours in the relevant period. The Court considers a premium of 33% of the hourly rate is reasonable in the sector. The Court also notes that the Respondent infringed the Complainant’s rights under Section 14 of the Act. Taking both the economic loss suffered by the Complainant together with the infringement of his rights under section 14 of the Act into account the Court orders the Respondent to pay compensation in the sum of 2000 to the Complainant.
Determination
The Court finds that the Respondent infringed section 14 of the Act. The complaint is well founded. The appeal is rejected. The Court orders the Respondent to pay the Complainant compensation in the sum of €2,000 which is made up of both his economic loss and an amount for the infringement of his rights under Section 14 of the Act.
The Court so determines.
Section 19 of the Act
Section 19 of the Act 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):
- (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),
Complainant’s Case
The Complainant states that he wished to correct the evidence he submitted to the Rights Commissioner. He states that he understated the hours he worked in the relevant period. He states that he told the Rights Commissioner that he worked a total of 1152 hours in 2013. He wished to now correct that figure based on an analysis of his rosters. He submits that he in fact worked 1504.5 in the relevant year.
He submits that this amount exceeds the statutory threshold of 1365 hours which entitles him to 4 weeks leave in the relevant leave year. He asks the Court to take this new evidence into consideration and adjust the Rights Commissioner’s decision accordingly.
The Respondent, appealed against the decision of the Rights Commissioner. The totality of its submission to the Court states “All pay slips were issued for the hours worked and the average calculation is not applicable where the actual record is available. There is no breach of section 19 of the Act. Employer do not owe any economical loss as there is no economic loss to [the Complainant].”
Findings of the Court
The Respondent did not submit records to the Court for all of the relevant period. What records it did submit conflict with the records it supplied to the Complainant and which were made available to the Court. The Court finds the Respondent’s records not to be credible. The Court finds that the evidence of the Complainant was honest and reliable.
The Court finds that the Complainant worked in excess of 1365 hours in the relevant leave year and thereby became entitled to four weeks paid leave. He was granted two weeks leave in the relevant leave year which leave an entitlement to two further weeks leave outstanding that year.
The Court notes that annual leave is a safety health and welfare at work provision that is inserted into Irish law by way of the transposition of a directive of the European Union. The Court also notes that a worker’s entitlement to avail of such leave is an important social right. It is in that context that the Court must consider this complaint.
The Court further notes that the Respondent failed to maintain and or to produce credible records to the Court. It also notes that there it supplied misleading documents to the Court on which it sought to base its appeal. Those documents sought to mislead the Court into finding that the Complainant had been awarded his full annual leave entitlement in accordance with law.
Determination
The Court finds that the Respondent infringed section 19 of the Act. In the circumstances of this case the Court orders the Respondent to pay the Complainant compensation in the sum of €2,000 for the economic loss he incurred and for the infringement of his rights under the Act.
The Court so determines.
Section 21 of the Act
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:
- (a) a paid day off on that day,
The submission of the Respondent, who appealed against the decision of the Rights Commissioner, consisted of the following statement “He did not work more than 23.5 hours of Public Holidays and all public holidays were duly paid.” It made no further submissions to the Court.
Findings
The Court finds that the Respondent has set out no basis for the appeal. It did not produce records or provide any other credible evidence in support of the assertion set out above.
Determination
The decision of the Rights Commissioner is affirmed. The Court orders the Respondent to pay the Complainant compensation in the sum of €95.26. The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
2nd February, 2015______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.