FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 28 (1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : SAHIN AKKOYUN AND SUAT SALIK T/A CAPITAL KEBAB HOUSE (REPRESENTED BY BERWICK SOLICITORS) - AND - ISMET AYDOGAN (REPRESENTED BY TOM O'REGAN SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. Appeal of Adjudication Officer Decision No r-157012-wt-15
BACKGROUND:
2. A Rights Commissioner's (now known as an Adjudication Officer) hearing took place on 27 August 2015 and 19 October 2015, and a Decision was issued on 21 January 2016.
The Employer appealed the Decision of the Rights Commissioner to the Labour Court on 10 February 2016, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 6 April 2016.
DETERMINATION:
This matter came before the Court by way of an appeal lodged by Sahin Akkoyun & Suat Salik t/a Capital Kebab House against an Adjudication Officer’s decision r-157012-wt-15. The Adjudication Officer upheld the claims made under Section 17, 19, 20 and 21 of the Act by Mr Ismet Aydogan. The Adjudication Officer awarded him the sum of €500.00 in respect of the breach of Section 17 of the Act. She awarded the sum of €2,280.00 for the economic loss of not receiving his annual leave plus the sum of €1,500.00 in compensation for these breaches. She awarded the sum of €1,026 for the economic loss of not receiving public holiday entitlements under Section 21 of the Act, plus the sum of €1,000.00 in compensation for this breach.
For ease of reference the parties are given the same designation as they had at first instance. Hence Mr Ismet Aydogan will be referred to as “the Complainant” and Sahin Akkoyun & Suat Salik t/a Capital Kebab House will be referred to as “the Respondent”.
The Complainant was employed by the Respondent as a General Operative from 14thJuly 2012 until 16thJanuary 2015. The Complainant referred his complaint to the Workplace Relations Commission under the Act on 16thJune 2015, he sought an extension of time in accordance with Section 27 (5) of the Act. The reasons cited for the extension related to his lack of knowledge of his employment rights, his lack of understanding of the English language and his fear of the consequences of raising a complaint while still employed by the Respondent. The Adjudication Officer granted the Complainant’s application.
The Respondent disputed the reasons given for the extension of time and stated that the Complainant had been living in Ireland since 2004 and had a good understanding of the English language.
In effect the Complainant is relying on ignorance of his legal rights to justify the delay in presenting his claim. InMinister for Finance v Civil and Public Services Union & Ors[2007] 18 E.L.R. 36, the High Court (per Laffoy J.) held that the jurisprudence that generally governs the application of limitation periods under the Statute of Limitations 1957 should apply to statutory time-limits such as that in issue in the instant case. In that case the Court pointed out that, except in the case of a person under a disability, ignorance of one’s legal rights, as opposed to the underlying facts giving rise to those rights, cannot be accepted as an excuse for not bringing a claim in time.
Having considered the reasons given for the extension of time, the Court does not find that there were reasonable grounds for not submitting the claim before June 2015. Accordingly, the cognisable period for the claims under Section 17 and 21 of the Act are from 17thDecember 2014 to 16thJanuary 2015 (the date his employment terminated) and in respect of the claims concerning annual leave, the period goes back to the start of the relevant leave year, i.e. 1stApril 2014 until 16thJanuary 2015.
Evidence was given by Mr Sahin Akkoyun on behalf of the Respondent and the Complainant also gave evidence to the Court.
Section 17 claim
The Complainant submitted that the Responded failed to give him notice of his start and finish times, that when his working hours changed from time to time he did not receive adequate notice and accordingly was in breach of Section 17 of the Act.
Mr Sahin Akkoyun told the Court that although the Complainant’s basis hours were 35 ½ hours per week, there were many occasions when the starting and finishing times varied. He accepted that on such occasions the Complainant may not have received twenty four hours’ notice of his working hours.
Based on the evidence given, the Court is not satisfied that the Complainant received twenty four hours’ prior notice on those occasions when his starting and finishing times varied. Therefore the Court finds that the Respondent was in breach of Section 17 of the Act.
Section 19 and 20 claim
The Complainant alleged that he did not receive any holidays in respect of the leave year 2014 and that he had not received any holiday pay. In his evidence to the Court the Complainant disputed the Respondent’s assertion that he took three weeks annual leave around December 2014/January 2015, to return to Turkey. He said that the last time he travelled to Turkey was in December 2013.
The Respondent submitted that the Complainant had availed of three weeks leave in December 2014/January 2015, which were paid weeks and in addition it stated that the Complainant had given him a cash loan in order to travel to Turkey.
No records were produced for the Court. Having heard the evidence the Court is not satisfied that the Complainant was in receipt of annual leave and was not paid annual leave pay in respect of the cognisible period covered by the claim, therefore the Court finds that the Respondent was in breach of Sections 19 and 20 of the Act.
Section 21 claim
The Complainant alleged that he worked all public holidays and had not received his entitlements under Section 21 of the Act.
The Respondent submitted that as the Complainant was paid for each week, he was therefore paid for public holidays, most of which he did not work.
There were three public holidays in the cognisible period covered by the claim, i.e. 25thand 26thDecember 2014 and 1stJanuary 2015.
No records were produced for the Court. Having heard the evidence the Court is not satisfied that the Complainant was in receipt of his public holiday entitlements, and therefore finds that the Respondent was in breach of Section 21 of the Act.
Determination
The Court determines that the Respondent must pay the Complainant the sum of €500 as compensation in respect of the breach of Section 17 of the Act.
The Court determines that the Respondent must pay the Complainant the sum of €1050.00 for the economic loss of not receiving paid annual leave in respect of the breach of Section 19 and 20 of the Act, plus the sum of €750.00 in compensation for these breaches.
The Court determines that the Respondent must pay the Complainant the sum of €210.00 for the economic loss of not receiving public holiday entitlements in respect of the breach of Section 21 of the Act, plus the sum of €500.00 in compensation for this breach.
These payments should be made within six weeks of the date of this determination. Accordingly, the Court varies the Adjudication Officer’s Decision and upholds the Respondent’s appeal in part.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
19 April 2016______________________
MNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.