SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
- AND -
(REPRESENTED BY RICHARD GROGAN & ASSOCIATES)
Chairman: Mr Hayes
Employer Member: Ms Doyle
Worker Member: Mr Shanahan
1. Appeal of Rights Commissioner's Decision No: r-123316-wt-12/JW
2. This case concerns an appeal by the worker of Rights Commissioner's Decision No: r-123316-wt-12/JW. The issue concerns a claim by the worker for outstanding entitlements with respect to Annual Leave and Public Holidays. The matter was referred to a Rights Commissioner for investigation. A decision issued on the 28th November 2012 and awarded the worker €475. On the 7th December 2012, the worker appealed the quantum of compensation awarded by the Rights Commissioner in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 19th March, 2013. The following is the Court's Determination:
The facts of this case are not in dispute. Mr Szarlata (the Appellant) worked for Mr Paul Clarke (the Respondent) in his body repair shop, as a spray painter, from March 2005 until his employment terminated through redundancy on 1 June 2012. It is common case that at the time he was made redundant the Appellant was due payment in respect of both outstanding Annual and Public Holiday entitlements. He referred a Complaint, under the Organisation of Working Time Act (the Act) to the Rights Commissioner in which he maintained that the Respondent had infringed Sections 19(1) and 21(1) of the Act. The Rights Commissioner, in a decision bearing the number r-123316-wt-12/JW delivered on 28 November 2012 decided that the complaints were well founded, measured the amount owed to the Appellant at €475 and awarded him compensation in that amount.
The Appellant appealed against the quantum awarded by the Rights Commissioner to this Court under 28(1) of the Act. The case came on for hearing on 19 March 2013.
The Appellant argues that the award of €475 is not adequate and should be increased by this Court. He relies on the decision of the CJEU inVon Colsonand Kamann v Land Nordrhein-Westfalenin this regard.
The Respondent accepts the Decision of the Rights Commissioner. Itargues that the Appellant worked for him from 2005 onwards and that he was afforded all of his statutory entitlements. He submits that his failure to afford the Appellant his due holiday entitlements on cessation of his employment arose in the context of a severe decline in business that gave rise to short time working. This was a circumstance he never experienced before and consequently he made mistakes. He acknowledges that the manner in which he handled his business affairs, at that time, was less than perfect. He submits that he has not appealed the Rights Commissioner’s decision and is willing to meet his statutory obligations to the Appellant. He submits that he is committed to meeting his statutory obligations in the future as he has in the past and no purpose will be served by imposing additional sanctions on him in the nature of those envisaged by the ECJ in Von Colson.
Findings of the Court
The entitlement to annual leave is a very important measure that was introduced by the European Union in order to protect workers safety and health at work. The Court must therefore take a very critical view of any failure to afford workers their entitlement under the relevant provisions of the Act. However the Court must also view breaches in the context in which they occur and match the level of an award of compensation with the level of breach that occurred and the disposition of the employer involved in the breach.
The context of the breach in this case is such that the Court finds that the Rights Commissioner erred in confining the level of the compensation awarded to the actual loss incurred. On the other hand the Court takes the view that the Respondent did not take all reasonable steps to address the infringement of the Act when it was brought to his attention. Accordingly the Court takes the view that the award of compensation should, in the circumstances of this case, be increased from €475 to €550.
The Court determines that the complaint is well founded. The appeal is allowed. The Court orders the Respondent to pay the Appellant compensation in the sum of €550. The Decision of the Rights Commissioner is varied accordingly.
The Court so determines.
Signed on behalf of the Labour Court
18th April 2013______________________
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.