FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : F S SUB HOLDINGS LIMITED - AND - MS IRMA SKLENYTE (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner's Decision r-106264-wt-11/JT.
BACKGROUND:
2. A Rights Commissioner hearing took place on the 22nd June 2011, and a Decision was issued on the 5th December 2011.
The Worker appealed the Decision of the Rights Commissioner to the Labour Court on the 26th September 2011, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 19th April 2012.
DETERMINATION:
The Complainant brought a complaint before a Rights Commissioner pursuant to the Organisation of Working Time Act 1997 (the Act) alleging that the Respondent was in breach of Section 12, when the Respondent failed to ensure she received her statutory entitlement to breaks. The Rights Commissioner upheld the complaint and awarded the sum of €500.
Mr Richard Grogan, Solicitor, Richard Grogan & Associates, on behalf of the Complainant appealed against the quantum of compensation awarded. There was no cross-appeal by the Respondent.
The Respondent did not attend the appeal hearing before the Court and was not represented.
The Complainant submitted her claim under the Act to the Rights Commissioner on 23rdMarch 2011.
The Complainant worked from 8.30am until 4.30pm and was paid €480.76 per week. Mr Grogan submitted to the Court that the Respondent was in breach of the Act. He stated that while the Complainant normally received a 30 minute break at 2.00pm in accordance with section 12 of the Act, there were a number of occasions when the shop was busy, mostly on Thursdays and Fridays, and she could not avail of any break during the day.
Mr Grogan submitted that this situation had persisted for some time and continued despite a similar claim being submitted to the Rights Commissioner (and was subsequently appealed to the Labour Court), some five months before the Complainant submitted her claim under the Act.
Having considered the submission made the Court concurs with the findings of the Rights Commissioner that the Respondent was in breach of section 12 of the Act. In all the circumstances of this case and taking account of the CJEU caseVon Colson & Kamann v Land Nordrhein – Westfalen[1984] ECR 1891 where the CJEU made it clear that where such a right grounded in European law is infringed the judicial redress provided should not only compensate for economic loss sustained but must provide a real deterrent against future infractions. Having regard to all the circumstances of this case the Court is not satisfied that the quantum of the award made by the Rights Commissioner meets the standard required by the CJEU in that case.
The Court determines that the Complainant should be paid the sum of €3250 in compensation for the breach of the Act by the Respondent and accordingly varies the Rights Commissioner's Decision and upholds the Complainant’s appeal.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
30th April, 2012______________________
COFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Colm O'Flaherty, Court Secretary.