DWT1637

This is an appeal by Benitime Limited t/a Al Muretto against the decision of a Rights Commissioner given under the Organisation of Working Time Act 1997 (the Act).

In this Determination the parties are referred to as they were at first instance. Hence Benitime Limited is referred to as the Respondent and Ioan Vlad Onit is referred to as the Complainant.

The Dispute

There are three elements to the Complainant’s complaint under the Act. They relate to the following: -

• 
  •A underpayment of €120.24 in respect to outstanding annual leave to which the Complainant was entitled on the termination of his employment on 1^stOctober 2012, in contravention of s.19 of the Act,
  
  •A failure to afford the Complainant a benefit in respect to Public Holidays, contrary to s.21 of the Act,
  
  •A failure to pay the Complainant a premium in respect to Sunday working, contrary to s.14 of the Act.

It appears that the within claims were lodged with the Sligo offices of NERA on 23^rdNovember 2012. The complaint form was forwarded by NERA to the Workplace Relations Service and was received by that service on 5^thMarch 2013.

Even if the date on which the complaints were presented was to be taken as 23^rdNovember 2012, (and the Court makes no finding on whether that constituted good service) the cognisable period in these proceedings would run from 24^thMay 2012 until 1^stOctober 2012, at which point the Complainant’s employment came to an end.

It was agreed between the parties that no application was made to the Rights Commissioner / Adjudication Officer to extend the statutory six month time limit at the hearing. Nevertheless, the Rights Commissioner / Adjudication Officer decided, on her own motion, to extend time so as to cover the period between 1^stJanuary 2012 and 1^stOctober 2012.

It is well settled that in order to obtain an extension of time the Complainant must both explain the delay and offer a justifiable excuse for the delay (see Determination WTC0338,Cementation v Carroll). In this case the Complainant offered no reason for a delay in presenting his claim up to the date on which it was referred to the NERA offices. In these circumstances the only extension that could be granted is in respect to the six months ending on 23nd November 2012. Accordingly the Court is prepared to recognise the cognisable period for these claims as being from 24^thMay 2012 to 1^stOctober 2012.

The Decision of the Rights Commissioner / Adjudication Officer

The Rights Commissioner / Adjudication Officer made the following awards: -

• 
  •€120.24 by way of arrears of holiday pay and additional compensation of €2,500 in respect of a contravention of s.19 of the Act,
  
  •€3,500 in respect of contraventions of s.21 of the Act,
  
  •€3,000 in respect of contraventions of s.14 of the Act.

The Respondent appealed against the finding of liability and also against the quantum of compensation awarded by the Rights Commissioner / Adjudication Officer.

Conclusions of the Court

Section 25 of the Act provides: -

• 25.—(1) An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this Act are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making.

  (2) The Minister may by regulations exempt from the application of subsection (1) any specified class or classes of employer and regulations under this subsection may provide that any such exemption shall not have effect save to the extent that specified conditions are complied with.

  (3) An employer who, without reasonable cause, fails to comply with subsection (1) shall be guilty of an offence.

  (4) Without prejudice to subsection (3), where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.

Section 19
The underpayment in respect of holiday pay is not denied. However, the Court is satisfied that the amount of additional compensation awarded by the Rights Commissioner / Adjudication Officer in respect of this contravention is excessive and disproportionate in the circumstances. The Court is satisfied that the decision of the Rights Commissioner / Adjudication Officer should be amended so as to provide for an award of €120.24 by way of arrears and additional compensation in the amount of €350.

Section 21
In the cognisable period there were two Public Holidays, namely the June and August Public Holidays. In the submissions made on the Respondent’s behalf the Court was told that the Complainant received an additional day’s annual leave in respect to working on these Public Holidays. However, the Respondent was unable to adduce any tangible evidence to support that assertion. The Complainant denied having received additional annual leave in consideration of having worked on the days in question. In these circumstances the Court is satisfied that the Respondent did contravene s.21 of the Act on the two occasions in question.

The total economic value of an addition day’s pay or an additional day’s annual leave for two Public holidays, at the Complainant daily rate, was €110. The Court is satisfied that the compensation awarded for this contravention was excessive and disproportionate. According the decision of the Rights Commissioner / Adjudication Officer is amended so as to provide for total compensation of €450 in respect of the contravention of s.21 of the Act.

Section 14
It is accepted that the Complainant worked on every Sunday and that he was not paid a premium for so doing. Accordingly, the Court is satisfied that the Respondent contravened s.14 of the Act in relation to the Complainant.

The Court is satisfied that the compensation awarded by the Rights Commissioner /Adjudication Officer in respect of this contravention was excessive and disproportionate in all the circumstances. Taking a premium of time plus one half as appropriate in this case and taking account of the fact that the Complainant worked on 20 Sundays in the cognisable period, the economic loss suffered by him was of the order of €540. In these circumstances the Court measures the quantum of compensation that is fair and equitable at €1,000. The decision of the Rights Commissioner / Adjudication Officer is amended accordingly.

Outcome

The Respondent’s appeal against liability is disallowed. The appeal in so far as it relates to the quantum of compensation is allowed. The decision of the Rights Commissioner is amended in the terms of this Determination.

Signed on behalf of the Labour Court



Kevin Duffy
LS______________________
18 May 2016Chairman



NOTE

Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.