FULL RECOMMENDATION
) SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : LEO CORRIGAN T/A LC PLANT HIRE - AND - SEAMUS MULLIGAN DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner's Decision r-147520-wt-14.
BACKGROUND:
2. The Employer appealed the Rights Commissioner's Decision to the Labour Court on 29th April, 2015. A Labour Court Hearing took place on 4th June, 2015. The following is the Labour Court's Determination:
DETERMINATION:
The Respondent/Appellant is a sole trader operating a plant hire business. The Claimant was employed by the Appellant as a driver from 24 October 2011 until 24 February 2014. On the 11 August 2014 the Claimant presented a complaint to the Rights Commissioner under section 27 of the Act. In the complaint he alleged that the Respondent had infringed sections 19,20,21,22 and 23 of the Act. In addition he sought an extension of time under section 27(5) of the Act.
The Rights Commissioner investigated the Complaints. The Respondent did not attend the hearing or make a submissions to the Rights Commissioner. By a decision dated 23 April 2015 the Rights Commissioner extended the time under section 27(5) and found in favour of the Complainant on all complaints. He awarded the Complainant compensation in the sum of €8,000.
The Respondent on 29 April 2015 appealed under Section 28(1) of the Organisation of Working Time Act 1997to the Labour Court against the decision of the Rights Commissioner.
On the 4thJune 2015 in accordance with section 28(1) the Court gave the parties an opportunity to be heard by it and to present to it any evidence relevant to the appeal. Both parties attended the hearing and presented evidence to the Court.
Claimant’s Case
The Claimant told the Court that he worked for the Respondent as driver in the plant hire business from October 2011 until he terminated his employment in February 2014. He said that in that time he did not receive his entitlement under the Act in respect of any of the public holidays that fell in that period. He said that he did not work on any of those holidays but that he was not paid a day’s pay for any of them despite his entitlement to such payment under the Act.
He further told the Court that he was, contrary to the Act, not paid for any period of annual leave while he was in the Respondent’s employment.
He acknowledged that he took some time off to work on the family farm while employed by the Respondent. He supplied a list of those days to the Court. He further stated that he was ill and unable to work from the 2ndto 23rdDecember 2013.
Finally he stated that following representations to the Respondent on these matters he paid him €500 in part settlement of the amounts due. He said that he received promises of payment of the balance due to him which he calculated as totalling €7,050.55.
He sought an extension of time to bring the complaint under the Act. He argued that he had raised the matter with the Respondent, had received partial payment of the outstanding sums and had been repeatedly promised payment of the balance due. He said that he relied on that promise and as a consequence did not bring proceedings under the Act at an earlier time. The promise was not honoured. He says he was finally and belatedly forced to commence proceedings under the Act to vindicate his rights. He argued that in the circumstances these amounted to reasonable grounds and asked the Court to extend time for bringing the complaints.
He said that while employed by the Respondent he did not receive pay slips and that when he sought these after his employment ended he was supplied through NERA with copies of documents that bore no relationship to the actual hours he worked or monies he received.
The Respondent
The Respondent stated that he did not attend the Rights Commissioner’s hearing into the complaints due to an emergency situation that arose on that day.
He said that the Complainant never worked for him in a full time capacity and accordingly had no entitlement to payment for annual leave or for public holidays. He said that the Complainant was paid in full for all the work he performed. He said that the monies he was paid included an amount in respect of his entitlement to annual leave and to public holidays. He also said that the Complainant was paid minimum wage and that he worked an average of 45 hours per week.
He acknowledged that he did not provide pay slips to the Complainant during his employment. He said that the pay slips he finally issued were not produced weekly but were generated after he left his employment. He acknowledged that they were not a precise record of the Complainant’s hours of work or of his weekly rate of pay.
The Respondent made no submissions on the Complainant’s request for an extension of time.
Findings of the Court
The Court finds that the Complainant’s evidence was honest, consistent and supported by the documents he submitted. The Court finds that the Respondent’s evidence was contradictory, inconsistent, unreliable and that the documents he submitted were equally largely unreliable.
In the circumstances the Court prefers the evidence of the Complainant.
The Court also finds that the Complainant’s evidence regarding the promises he received from the Respondent regarding payment of the outstanding monies were the reason he did not commence proceedings at an earlier time. Accordingly the Court agrees with the Rights Commissioner that the Complainant has shown reasonable grounds within the meaning of section 27(5) of the Act for extending time.
The Court notes that the Complainant told the Court that he was paid €500 by the Respondent in part payment of the sums due to him. The Court finds no reference to this amount in the decision of the Rights Commissioner on the complaints before him.
In the circumstances the Court decides that it is reasonable to deduct that amount from the award made by the Rights Commissioner which reduces the award from €8,000 to €7,500 in this case. The Court decides accordingly.
Determination
The Court rejects the appeal on the substantive issue but reduces the compensation awarded by the Rights Commissioner to €7,500 for the reasons set out above.
The Decision of the Rights Commissioner is varied accordingly.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
24th June, 2015______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.