FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : DES LUMSDEN - AND - IOAN TITIENI (REPRESENTED BY RICHARD GROGAN & ASSOCIATES SOLICITORS) DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner's Decision R-111224-WT-11/MMG.
BACKGROUND:
2. The case before the Court concerns the Worker's appeal of a Rights Commissioner's Decision. It is the Worker's claim that during the course of his employment from June 2004 until June 2011 the Employer breached several Sections of the Organisation of Working Act, 1997, and he did not receive the appropriate amount of annual leave or public holiday entitlements. The Worker further contends that he did not receive sufficient rest periods between work days. The matter was referred to a Rights Commissioner for investigation and recommendation. The Worker 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 9th November, 2011. The Court heard the appeal on the 9th February, 2012, the earliest date suitable to the parties.The Employer was not present and was not represented at the hearing. The following is the Determination of the Court:
DETERMINATION:
This is an appeal by Mr Ioan Titieni (referred to herein as the Claimant) against the Decision of a Rights Commissioner in his claims against his former Employer, Des Lumsden (referred to herein as the Respondent) under the Organisation of Working Time Act, 1997 (the Act).
The Claimant failed to attend before the Rights Commissioner for reasons which were explained to the Court. The Respondent also failed to appear before the Rights Commissioner. In the circumstances the Rights Commissioner dismissed the Claimant's claims for want of prosecution.
At the hearing of this appeal the Claimant attended and was legally represented. The Respondent did not attend and was not represented. The Court is satisfied that the Respondent was informed of the time, date and place of the Court sitting to hear this appeal. Accordingly the Court proceeded to hear the evidence presented on behalf of the Claimant.
The Claimant was employed by the Respondent between June 2004 and 17th June, 2011. The within complaints were made to a Rights Commissioner on 21st July, 2011. Accordingly the reference period for the purposes of these claims is the period from 22nd January, 2011 until the termination of the Claimant's employment on 17th June, 2011.
The Claimant was at all material times employed as a construction operative and his employment was covered by the Registered Employment Agreement for the industry. While the Claimant's Solicitor was unable to provide the Court with precise figures relating to the wages payable to the Claimant under the Agreement he agreed that the Court should assess any compensation due to the Claimant on foot of his complaints on the basis of a weekly wage of €600 excluding pay for overtime.
The Court finds as follows on the uncontested evidence presented:-
Breach of Section 13 of the Act
The Court accepts that the Claimant was not afforded weekly rest in accordance with this Section.
The Court finds this complaint well-founded.
Section 19 - Annual Leave
The Claimant contends that in the leave year 1st April, 2010, to 31st March, 2011, he received 3 weeks' holidays but was not paid for those holidays. He was also due a further weeks' annual leave in respect of that leave year which he did not receive. He further claims that he was entitled to cessor pay, in accordance with s.23 of the Act, in respect of the period from 1st April, 2011, until 17th June, 2011, when his employment terminated.
The Court finds this complaint well-founded.
Redress
Having regard to all the circumstances of this case the Court awards the Claimant compensation in the amount of €5,000 for the contraventions of the Act which it has found to have occurred. Of this amount €2,000 is in respect of arrears of holiday and cessor pay. The remaining €3,000 is in the nature of a general compensatory amount.
Signed on behalf of the Labour Court
Kevin Duffy
24th February 2012______________________
SCChairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.