FULL RECOMMENDATION
SECTION 28 (1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : STEP 1 PERMANENT SOLUTIONS LTD (IN LIQUIDATION) (REPRESENTED BY HLB RYAN & CO) - AND - KAMILA MARZEDA (REPRESENTED BY BLAZEJ NOWAK) DIVISION : Chairman: Mr Haugh Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appeal of Adjudication Officer Decision No. r-159658-wt-15.
BACKGROUND:
2. The Worker referred this case to the Labour Court on the 13 October, 2016, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court Hearing took place on the 13 December 2016.
DETERMINATION:
This is Ms Marzeda’s (“the Complainant”) appeal from a decision of an Adjudication Officer (r-159658-wt-15/DI) made pursuant to the Organisation of Working Time Act 1997 (“the 1997 Act”) dated 10 October 2016. The Notice of Appeal was received by the Court on 13 October 2016. The Complainant’s representative, Mr Nowak, filed an initial written submission with the Court on 9 December 2016 and a supplementary submission on 13 December 2016. The Liquidator appointed to the Respondent did not file a written submission with the Court but informed the Court by email dated 8 December 2016 that the Receiver had “processed claims for Ms Marzeda under r – 159460-te-15/DI and r-159746-taw-15/DI and to date [the Liquidator had] received payment for 1 of these claims (€650) and [is] awaiting the second claim to be processed by the [Department of Social Protection.]”
The Complainant submitted two claims at first instance under the 1997 Act: (i) in respect of annual leave entitlement for the period 1 January 2015 to 31 March 2015; and (ii) in respect of her entitlement for the public holiday that fell on 4 May 2015. The Adjudication Officer found that the complaints were well founded but “the breaches were of a nature that resulted in the Claimant suffering no loss or detriment other than the delay in payment.” The reasoning for this finding was that the Receiver – as noted above – had provided the Complainant with a copy of the IP1 Form “in order that a claim could be made to the Department of Social Protection for outstanding wages, annual leave, notice and holiday entitlements.”
The Complainant’s representative submits, on the appeal, that the calculation of the Complainant’s claims under the 1997 Act was based on an incorrect basic hourly rate of pay. He informed the Court that the Adjudication Officer – in a separate complaint under the Protection of Employees (Temporary Agency Work) Act 2012 – had found that the Complainant had been underpaid by €1.35 per hour for the duration of her employment. The representative submitted that the economic value of the shortfall accruing to the Complainant, therefore, in respect of her complaints under the 1997 Act is as follows: (i) annual leave (s.19): €146.64; (ii) public holiday of 4 May 2015 (s.21): €7.53. The Respondent further referred the Court to the judgment of the Court of Justice of the European Union (as it is now known) inSabine von Colson and Elisabeth Kamann v Land NordrheinWestfalen(Case 14/83) and to the judgment of the High Court inPiotr Bryszewski v Fitzpatricks and Hanleys Limited trading as Caterway and the Labour Court[2014] IEHC 263[2014] IEHC 263 in support of his submission that the Court should apply the so-called ‘von Colson’ principles in its determination of any compensation payable to the Complainant.
Decision
The Court awards the following amounts to the Complainant herein in respect of the shortfalls arising from the miscalculation of her entitlements under the 1997 Act by the Receiver: (i) annual leave (s.19): €246.64 (being the economic value of the shortfall claimed plus €100.00 in compensation for the effects of the breach of s.19 of the 1997 Act); and (ii) €7.53 for the breach of s.21, it being settled law that s.21 does not attract the ‘von Colson’ principles.
The Court so determines.
Signed on behalf of the Labour Court
Alan Haugh
12th January 2017______________________
JKDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jason Kennedy, Court Secretary.