SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
STARTER CENTRE LIMITED
- AND -
(REPRESENTED BY COLLINS CROWLEY, SOLICITORS)
Chairman: Ms Jenkinson
Employer Member: Mr Murphy
Worker Member: Ms Ni Mhurchu
1. Appealing against a Rights Commissioner's Decision r-111547-wt-11/DI.
2. The Claimant worked for the Company as an Auto Electrician since 6th October, 2003 until his employment was terminated on 8th April 2011. The case concerns a claim by the Claimant that he did not receive his annual leave entitlements. The matter was referred to a Rights Commissioner for investigation and Decision. On the 28th February 2012, the Rights Commissioner issued his Decision as follows:-
"Having fully considered the submissions made by the parties I find, on balance, the Claimant's complaint not to be well founded."
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 4th April, 2012. The Court heard the appeal on the 27th June, 2012, the earliest date suitable to the parties.
3. 1. During his period of employment the Claimant did not receive his full annual leave entitlements. The Claimant is seeking compensation for the Company's breach of Section 19 of the Organisation of Working Time Act 1997.
4. 1. The Claimant resigned on 7th April 2011 and collected his wages and all holiday pay entitlements due to him on the following day. He never mentioned anything about outstanding holiday pay still owed to him.
2. The Company is not in breach of Section 19 of the 1997 Act as all holiday entitlements were duly paid.
Mr Honesto Rumbaua brought a complaint before a Rights Commissioner pursuant to the Organisation of Working Time Act 1997 (the Act) alleging a breach of Section 19 of the Act by his former employer, Starter Centre Limited. The Rights Commissioner did not find in favour of the Complainant’s claim. The Worker appealed the Decision.
For ease of reference the parties are referred to as they were at first instance. Hence Mr Honesto Rumbaua is referred to as “the Complainant” and Starter Centre Limited is referred to as “the Respondent”.
The Complainant submitted a claim under the Act to the Rights Commissioner on 1stJuly 2011.
The Complainant was employed by the Respondent from 6thOctober 2003 until 7thApril 2011 as an auto electrician, he was paid €430 gross per week. The Complainant claimed that he did not receive his full annual leave entitlement to holiday and holiday pay for 2009 and 2010.
The Respondent disputed the Complainant’s claim and stated that the Complainant had received and been paid for 20 days for each of the years in question.
Section 27(4) of the Act allows for complaints to be presented within 6 months of the alleged contravention of the Act and Section 27 (5) provides for an extension of that limit by a further 12 months where reasonable cause has been shown for the Complainant's failure to present the complaint within that time limit. No such application was made to the Court.
It follows that the six-month period referred to in the complaint under Section 27(4) of the Act encompasses the leave year 2010/2011 which began on 1stApril 2010. The Complainant informed the Court that he had no claim in respect of the period from 1stJanuary 2011 until the termination of his employment on 7thApril 2011. Therefore, the cognisable period covered by the claim is from 1stApril until 31stDecember 2010.
The Respondent informed the Court that he paid the Complainant three week’s holiday pay on 3rdDecember 2010 plus one week’s wages and a bonus to cover the period from 3rdDecember 2010 until 5thJanuary 2011 when the Complainant was going on holidays. The Complainant disputed this and stated that he only received one week’s holidays, one week’s wages and a bonus.
The Court was faced with a direct conflict of uncorroborated evidence between the Complainant’s submission and that of the Respondent on the number of days granted as paid annual leave.The Respondent was not in a position to supply the Court with records to substantiate his contention.
Section 25(4) of the Act provides that where records are not maintained in the prescribed form the onus of proving, in proceedings before a Rights Commissioner and this Court, that the provisions of the Act have been complied with rests with the employer. It is thus for the Respondent to satisfy the Court, on the balance of probabilities, that the contravention alleged by the Complainant did not occur.
The Court has come to the conclusion, on the balance of probabilities, that the lack of evidence tendered on behalf of the Respondent does not discharge the onus that it bears of proving compliance with the Act in respect of the subject of the complaint. Accordingly, the Court has concluded that the Complainant is entitled to succeed in this appeal.
InVon Colson & Kamann v Land Nordrhein – Westfalen ECR 1891 the CJEU has made it clear that where 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 of the view that the appropriate level of award is €1,350.
For the reasons set out above the Court is satisfied that the appeal herein should be allowed and the Decision of the Rights Commissioner should be set aside.
Signed on behalf of the Labour Court
12th November, 2012______________________
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.