DWT15125

This is an appeal by C and F Tooling Limited (hereafter the Respondent) against the decision of a Rights Commissioner in a claim by Jason Cunniffe (hereafter the Claimant, under the Organisation of Working Time Act 1997 -2015 (the Act).

The appeal was initiated using the standard form provided for that purpose on 23^rdJune 2015. On the form the Appellant / Respondent stated that the appeal was being limited to a challenge to the quantum of compensation awarded by the Rights Commissioner. At the commencement of the hearing the Respondent sought to amend the appeal so as to put in issue all aspects of the Rights Commissioner’s decision, including the question of liability.

The Court refused to allow an amendment of the appeal as initiated. The Court held that the nature of the appeal that the Respondent was seeking to advance would be significantly changed if the amendment sought was allowed and that the Respondent was, in effect, seeking to present an entirely new appeal.

Section 28 of the Act allows a party to appeal to the Court within 42 days from the date on which the decision of the Rights Commissioner to which the appeal relates was communicated. That time limit has passed and it would beultra viresthe Court’s powers to entertain s new appeal presented at this stage.

Accordingly, the Court proceeded to hear the appeal initiated on 23^rdJune 2015, which relates to quantum only.

Period Covered by the Claims

The original claims were presented to the Rights Commissioner on 17^thDecember 2014. Consequently the cognisable period for the purpose of the claim ran from 18^thJune 2014 until 24^thOctober 2014, when the Claimant’s employment ended.

The Award

The Rights Commissioner found that the Respondent had contravened sections 14 (Sunday premium) and 15 (maximum weekly working hours) in relation to the Claimant. The Rights Commissioner awarded compensation in the amount of €6,500 in respect of the s.14 contravention and €10,500 in respect of the s.15 contravention.

The Position of the Parties

The Respondent submitted that both awards made by the Rights Commissioner were excessive and disproportionate to the contraventions found to have occurred. It was also submitted that they were out of line with awards made by the Court is cases in which similar contravention occurred in similar circumstances.

The Claimant submitted that the Rights Commissioner had applied the correct test in measuring compensation and had placed reliance on the decision of the ECJ (as it then was) in case C-14/83Von Colson v Land Nordrhein-Westfahlen[1986] C.M.L.R 430.

Discussion

In defending the awards made in this case much reliance was placed by the Complainant on the decision of the Court of Justice of the European Union (formally the ECJ) inVon Colson v Land Nordrhein-Westfahlen. That case needs to be understood in the context of the factual matrix in which it was decided. It concerned female social workers who had applied for posts at a male prison in West Germany. The authorities appointed two male candidates with lesser qualifications to those posts. The German Labour Court found that there had been discrimination and awarded the plaintiff's compensation pursuant to s.611a(2) of the German Civil Code. That section purported to implement Council Directive 76/207 on the implementation of equal treatment for men and women as regards access to employment. The Court found that that section only enabled it to award reimbursement of travelling expenses incurred by the Complainants in pursuing their applications for the posts.

The CJEU pointed out that the Directive did not prescribe the range of sanctions that should be applied in cases where discrimination was found to have occurred. However the Court went on to say that if a Member State chooses to penalise infringements of the prohibition of discrimination by an award of compensation, such compensation has to be adequate in relation to the damage sustained and that it must have a deterrent effect. The Court pointed out that compensation has to be more than merely nominal damages which the German law provided in restricting compensation to the reimbursement of travelling expenses incurred by a candidate who was discriminated against in the filling of the post.

The formulation used by the Court in answer to the third question posed by the referring Court is as follows: -

• Although Directive 76/207/EEC, for the purpose of imposing a sanction for the breach of the prohibition of discrimination, leaves the member-States free to choose between the different solutions suitable for achieving its objective, it nevertheless requires that if a member-State chooses to penalise breaches of that prohibition by the award of compensation, then in order to ensure that it is effective and that it has a deterrent effect, that compensation must in any event be adequate in relation to the damage sustained and must therefore amount to more than purely nominal compensation such as, for example, the reimbursement only of the expenses incurred in connection with the application. It is for the national court to interpret and apply the legislation adopted for the implementation of the directive in conformity with the requirements of Community law, in so far as it is given discretion to do so under national law.

In the context of the instant case that includes the loss of leisure time and any actual or potential adverse effect that might be reasonably foreseeable on the health and welfare of the Claimant arising from the contravention of s.15 of the Act that was found to have occurred.

It is also relevant to point out that the decision inVon Colsonrelated to the application of European law in the interpretation of domestic law. Section 14 of the Act was not intended to transpose a provision of European law and the decision in that case is inapplicable in a case involving the interpretation of that section.

Outcome

Having considered the submissions of the parties the Court has concluded that the contraventions of the Act that occurred in this case are not of such seriousness as to justify compensation of the amounts awarded by the Rights Commissioner. It follows that the awards went beyond what is fair and equitable in all the circumstances of the case.

The Court has concluded the appropriate level of compensation for the contraventions is as follows: -

Section 14

The Court awards compensation in the amount of €2,000 for this contravention.

Section 15

The Court awards compensation in the amount of €3,000 for this contravention.

The appeal is allowed and the decision of the Rights Commissioner is varied in the terms of this Determination.



Signed on behalf of the Labour Court



Kevin Duffy
13th November 2015______________________
AHChairman



NOTE

Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.