FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : O'FLAHERTY'S (NASSAU STREET) LIMITED TRADING AS READS PRINT, DESIGN & PHOTOCOPYING BUREAU - AND - DOMINIKA ZAJMALOWSKA DIVISION : Chairman: Mr Duffy Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner's Decision r-121981-wt-12/JT.
BACKGROUND:
2. The initial case before the Rights Commissioner was a claim by the Worker Ms Dominika Zqajmalowska that she did not receive her statutory breaks on some days during the 2011 Christmas period. In the absence of the Employer the Rights Commissioner found in favour of the Worker and issued the following Decision :-
"....I accept the uncontested evidence of the Claimant....and award her €500 in compensation under the Organisation of Working Time Act 1997."
The Employer appealed the Rights Commissioner’s Decision dated 10th October, 2012 to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997 on the 28th January 2013. The Court heard the appeal on the 15th March, 2013.
WORKER'S ARGUMENTS:
3. 1. There were unlawful deductions made from my wages, there were no extra payment for Public Holidays and I did not get some statutory breaks during working hours in the busy period leading up to Christmas 2011 as there were too few staff available to deal with the customers.
COMPANY'S ARGUMENTS:
4. 1. The following is an extract from the Claimant's letter dated 8th May, 2012 to the Labour Relations Commission (ref:- r-121969-pw-12 and r-121981-wt-12) and signed by her."..The issues between me and Reads were solved. I would like to ask for dismissal of an action..."It is therefore clear that there is no case for the Company to answer.
DETERMINATION:
This is an appeal by O’Flaherty’s (Nassau St.) Ltd trading as Reads Print, Design and Photocopying Bureau (the Respondent) against the Decision of a Rights Commissioner in a claim by Ms. Dominika Zajmalowska (the Claimant) under the Organisation of Working Time Act 1997.
The Respondent told the Court that the claim had been withdrawn before the hearing and that he had been advised accordingly by the Labour Relations Commission. In these circumstances the Respondent did not appear before the Rights Commissioner who proceeded with the case and make an award to the Claimant.
The claim was initiated by the Claimant on 13thApril 2012. It is clear from documents furnished to the Court that by letter dated 8thMay 2012 she wrote to the Labour Relations Commission quoting the reference number of this claim and another claim which she had made pursuant to the Payment of Wages Act 1991, withdrawing both claims. The Labour Relation Commission wrote to the Respondent by letter dated 1stJune 2012 confirming that the claims had been withdrawn.
In these circumstances it is unclear how the claims were listed for hearing before the Rights Commissioner who proceeded to deal with both claims.
There is, however, no ambiguity around the fact that the claim now before the Court was withdrawn and the Court is satisfied that the Rights Commissioner had no jurisdiction to deal with the claim. In these circumstances the Court has no option but to set the Decision of the Rights Commissioner aside.
The appeal is accordingly allowed.
Signed on behalf of the Labour Court
Kevin Duffy
16th April, 2013______________________
JFChairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.