FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : W Y SHAKES LTD - AND - MS KATIA BRITO SA DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal of Rights Commissioners Decision r-109221-wt-11/EH.
BACKGROUND:
2. A Rights Commissioner hearing took place on the 24th August 2011, and a Decision was issued on the 14th September 2011.
The Worker appealed the Decision of the Rights Commissioner to the Labour Court on the 4th October 2011, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 20th January 2011.
DETERMINATION:
Background
Ms Katia Brito Sa, the Complainant, worked for the Respondent, W Y Shakes Ltd as a sales assistant from 16thSeptember 2010 until she terminated her employment on 22NdFebruary 2011. She was paid at a rate of €8.75 per hour. She submitted a complaint to the Rights Commissioner to the effect that, on the cessation of her employment, she was, contrary to the provisions of the Act, not paid her accrued holiday entitlements that amounted to €393.75 i.e. the equivalent of 45 hours pay or 8% of the total hours she had worked for the Respondent. The Respondent, for various reasons, did not attend the Right’s Commissioner’s hearing into the Complaint.
On the uncontested evidence of the Complainant the Rights Commissioner upheld the complaint and made an award of €700 compensation in respect of both her economic loss and the breach of her statutory rights.
The Respondent appealed this Decision to the Labour Court.
Complainant’s Case
The Complainant submitted that she had worked for the Respondent for a total of 565 hours and that she had accrued a statutory holiday entitlement of 45 hours pay that amounted to €393.75.
She submitted that she wrote to the Respondent seeking payment of her statutory entitlements. She submitted that she received no response to the correspondence from the Respondent. She submitted that she was left with no option but to make a Complaint to the Labour Relations Commission seeking to vindicate her rights and entitlements under the Act.
She submitted that the Rights Commissioner’s decision was, in all the circumstances of the case fair and reasonable asked the Court to affirm the decision.
Respondent’s Case
Ms Anne Marie Dakik on behalf of the Respondent acknowledged that the Complainant had worked for the Respondent Company for 565 hours and had accrued 45 hours holiday entitlement in accordance with the provisions of the Statute.
She submitted however that the Complainant had terminated her employment without notice contrary to the provisions of her Contract of Employment causing serious adverse consequences including loss of trade for the business. She submitted that the Respondent was at all times prepared to meet its statutory obligations in respect of the Complainant but that no co-operation in calculating or arranging payment of the relevant amounts due was forthcoming from the Complainant. She submitted that when the Respondent Company tried to engage with the Complainant she became threatening, demanding and aggressive and that further communication became impossible.
She submitted that taking all factors into account including the Complainant’s breach of contract, the adverse consequences for the business and her refusal to co-operate with the calculation of the correct amounts the Court should set aside the Rights Commissioner’s award, should confine its own award to the Complainant’s statutory entitlement and award no further or additional compensation in this case.
Conclusions of the Court
The Respondent accepted that the Complainant was entitled to accrued holiday entitlements of 45 hours pay amounting to €393.75 in accordance with the provisions of the Act. The issue before the Court therefore was whether and to what extent compensation for the breach of the Complainant’s statutory entitlements should apply in this case.
The Court notes the obligations placed upon it by the ECJ inVon Colson and Kamann v Land Nordrhein-Westfalen.Accordingly in coming to a conclusion in this matter the Court must make an award of compensation that is not only nominal in nature but must also be "effective" and have a "deterrent effect".
The Court notes that the Complainant left her employment abruptly causing considerable inconvenience to the Respondent and allegedly resulting in a loss of trade with a consequential economic cost. On the other hand the Court notes that the Respondent did not take any material steps to pay the admitted relevant statutory entitlements to the Complainant at any time between the termination of her employment in February 2011 and the date of the hearing before the Rights Commissioner in August 2011. Accordingly the Court concludes that intention of the Respondent was to withhold the sum due for the maximum amount of time possible in reaction to the surreptitious manner in which the Complainant terminated her employment. The Court takes the view that the award should be such as to dissuade the Respondent from behaving in such a fashion in the future.
Having taken all relevant matters into account, the Court upholds the Rights Commissioner’s Decision and rejects the appeal.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
27th January, 2012______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.