FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : TRANSTECK TRANSPORTATION SERVICES LIMITED - AND - NICOLAE BRINZA (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appealing against a Rights Commissioner’s Decision r-067521-wt-08/JT
BACKGROUND:
2. The Employee appealed the Rights Commissioner’s Decision to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997 on the 3rd July, 2009. The Court heard the appeal on the 18th September, 2009.
DETERMINATION:
The Claimant brought a complaint before a Rights Commissioner pursuant to the Organisation of Working Time Act 1997 alleging breaches of Sections 12, 15 and 19 of the Act. The Rights Commissioner upheld the complaints made under Sections 12 and 15 and awarded €2000.00. The Claimant appealed against the quantum of the award only.
The Respondent admitted that it could not provide verification of meal breaks taken as the Worker was employed as a Driver and there was no record of the breaks taken. Furthermore, the Respondent conceded that the Claimant worked in excess of 48 hours on average per week. However, it stated that the Claimant constantly sought to work overtime hours in order to enhance his earnings.
The Respondent stated that since this claim was submitted it has introduced new recording arrangements to ensure that it is compliant with its statutory obligations under the Act. It also outlined the decline in its business due to the decline in the construction industry to which it is closely aligned.
The Court is required to follow the decision of the ECJ inVon Colson and Kamann[1984] ECR 1891 when considering awards of compensation.Von Colsonheld that sanctions for breaches of Community Rights must be effective, proportionate and dissuasive – they must act as a disincentive against future infractions by the employer.
However in this case the Claimant sustained no economic loss as a result of the breach of the Act and the Court notes that the Respondent has made changes to its procedures in order to ensure compliance with the Act. The Court also notes the decline in the Company's economic situation at the moment.
Having considered the Claimant’s appeal the Court is of the view that in all the circumstances of this case there is no basis upon which there should be an increase in the quantum of compensation awarded by the Rights Commissioner.
Accordingly the Decision of the Rights Commissioner is affirmed and the appeal disallowed.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
25th September, 2009______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.