DWT2319

1. Appeal Of Adjudication Officer Decision No. ADJ-00039517 CA-00051223-001

BACKGROUND:

2. An Adjudication Officer hearing took place on 2 March 2023 and a Decision was issued on 6 April 2023. The Employer appealed the Decision of the Adjudication Officer to the Labour Court on 26 April 2023 in accordance with section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 28 July 2023. The following is the Determination of the Court.

DETERMINATION:

Background

This is an appeal by J&J Retail Limited t/a Jack& Jones (the Respondent) against decision ADJ-00039517 of an Adjudication Officer. The complaint was made pursuant to a contravention of the Organisation of Working Time Act 1997 (the Act). The Adjudication Officer upheld Mr Quinn’s (the Complainant) complaint and awarded compensation of €10,725.

The claim was lodged with the WRC on the 19^th June 2022, therefore the cognisable period in accordance with the Act is 20^th December 2021 to the 19^th June 2022.

At the commencement of the hearing Ms Mc Mahon BL for the Respondent informed the Court that they accepted there was a breach of the Act in respect of compliance with section 14 and the only issue in contention was the quantum of compensation.

Summary of Complainant’s submission

The Complainant was employed by the Respondent from the 14^th March 2022 to 28^th July 2022. During that time, he was required to work a number of Sundays but did not receive any additional pay in respect of same contrary to section 14 of the Act. When he raised the issue with his manager, he did not receive a satisfactory response. The Complainant accepted the list of Sundays worked during the relevant period submitted by the Respondent.

Summary of Respondent’s submission

The Respondent submitted that it was relying on Labour Court determination DWT 1489 Viking Security Ltd v Tomas Valent in terms of the guidance set out in that Determination as regards to the method of calculating the level of compensation to be granted. In that case the Court held that compensation was to be calculated as the difference between salary paid and time plus one third for every hour actually worked in the relevant period. The Respondent submitted that this was the appropriate method for calculating any compensation that might fall due. In this case in the course of his employment, the Complaint worked a total of 82.07 Sunday hours. His hourly rate of pay during that period was €11.

Discussion.

The only issue that fell to the Court to determine was the economic loss suffered by the Complaint and what compensation if any to award for the breach of the Act. It was agreed between the parties that the Complainant worked 82.07 Sunday hours during the period and that his hourly rate was €11.

In calculating the loss to the Complainant using the methodology set out in the Viking case citied above, the economic loss to the Complainant is €11 divided by one third giving a value of €3.66 Sunday premium per hour worked. The Complainant worked a total of 82.07 hours during the relevant period, which when multiplied by €3.66 gives an economic loss of €300.38. The Court having considered the circumstances of this case and the submissions of the parties determines that the Complainant is entitled to compensation of €500 as well as his economic loss.

The Court determines that the economic loss of €300.38 plus compensation for the breach of €500 should be paid to the Complainant.

Determination

The Court Determines that there has been a breach of the Act and that the economic loss and compensation as set out above should be paid to the Complainant. The Decision of the Adjudication Officer is varied accordingly.

The Court so determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
AR	______________________
30 August 2023	Deputy Chairman