FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : IRISH MUSEUM OF MODERN ART (REPRESENTED BY ARTHUR COX, SOLICITORS) - AND - JOE STANLEY (REPRESENTED BY HAYES, SOLICITORS) DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner's Decision r-132465/132467-wt-13/RG.
BACKGROUND:
2. The Worker appealed the Rights Commissioner's Decision to the Labour Court on 9th January, 2014. A Labour Court Hearing took place on 28th February, 2013. The following is the Labour Court's Determination:-
DETERMINATION:
This is an appeal by Joe Stanley (hereinafter referred to as the Claimant) against the decision of a Rights Commissioner in his claim against the Irish Museum of Modern Art (hereinafter referred to as the Respondent). The claim is made pursuant to the Organisation of Working Time Act 1997 (the Act).
The Claimant claimed that the Respondent contravened Sections 19 (annual leave) and 21(Public Holidays) in relation to his employment.
The Factual Background
The Claimant is engaged by the Respondent as a technician. He is described as a ‘Technical Crew Member’. His undertakes work associated with the technical aspects of moving, presenting and storing works of art in connection with exhibitions. He also works directly with artists in relation to the foregoing. He was described by the Respondent as a member of its ‘casual technical crew’.
The Claimant commenced working for the Respondent in that capacity in 2005. Up until September 2012 the Claimant was treated by the Respondent as an independent contractor engaged on a contract for services. He was paid on foot of invoices which he submitted and which related to the specific exhibitions on which he worked. He did not pay tax under PAYE nor did he receive paid holidays or sick pay.
In September 2012 a Deciding Officer of the Department of Social Protection determined that the Claimant was insurable under the Social Welfare Acts for all benefits and pensions at PRSI Class A from 1stJanuary 2005. The stated reason for the decision was set out in a note to the Decision as follows: -
- Having examined the available records, I decide that the employment of Mr Joseph Stanley by the Irish Museum of Modern Art (ref: 4800456P) was a contract of service and that a normal employee / employer relationship did exist in this case.
The Claims
The within complaints were lodged with the Labour Relations Commission on 8thApril 2013. The Claimant was paid in respect of public holidays and annual leave that accrued after 1stJanuary 2013. In her decision the Rights Commissioner concluded that the Claimant’s employment status changed to that of an employee with effect from the Decision of the Deciding Officer in September 2012. She found that the Respondent had contravened Section 19 of the Act by not affording the Claimant annual leave that accrued to him between that date and January 2013. She also found that three Public Holidays occurred in the same period in respect of which the Claimant did not receive a benefit. She awarded the Claimant compensation in the amount of €2,000.
The Claimant contends that the Rights Commissioner erred in holding that he became an employee of the Respondent on the date of the Deciding Officer’s Decision. He contends that the true effect of the Decision is that he was employed by the Respondent on a contract of service at all times material to this claim and that he is entitled to compensation in an amount that takes account of the totality of his loss over the currency of his employment.
Conclusion
There can be no dispute concerning the Claimant’s status as an employee of the Respondent. That question was resolved by the Decision of the Deciding Officer of the Department of Social Protection. The Respondent did not appeal that Decision and it accepts that the Claimant’s engagement is pursuant to a contract of service. Arising from the aforementioned Decision of the Deciding Officer it is beyond argument that the Claimant has been an employee of the Respondent, on a contract of service, since the commencement of the working relationship in 2005.
It is clear from the Decision of the High Court inRoyal Liver Assurance Ltd v Macken[2002] 4 I.R 427 that a cause of action accrues in respect of a failure to afford an employee annual leave during a leave year at the end of the leave year to which the leave relates. The Act provides that a leave year commences on 1stApril and ends on 31stMarch of the following year. In this case the relevant leave year is that which commenced on 1stApril 2012 and ended on 31stMarch 2013. The Claimant was not provided with 20 days' annual leave during that leave year, in contravention of Section 19 of the Act. A cause of action in relation to that contravention accrued to the Claimant on 31stMarch 2013. His claim was lodged on 8thApril 2013. Consequently, the contravention of Section 19 in respect of the full leave is within the time limit and is actionable.
InRoyal Liver Assurance Ltd v MackenLavan J held, in effect, that in the case of Public Holidays a separate cause of action arising from a failure to comply with s.21 of the Act accrues on the date of each Public Holiday to which the contravention relates. Consequently the time limit in respect of each contravention of Section 21 runs from the date of the Public Holiday in question.
It is accepted that the Respondent complied with Section 21 in respect of each Public Holiday falling after 1stJanuary 2013. Having regard to the date on which the within complaint was presented the time limit ran from 9thOctober 2012. There were three Public Holidays that occurred in that period before 1stJanuary 2013. The Respondent contravened Section 21 in respect of each of those Public Holidays. Any cause of action which the Claimant may have had in respect of Public Holidays that occurred before 9thOctober 2012 is statute-barred.
Redress
The Court is satisfied that the appropriate form of redress in this case is an award of compensation. Having regard to all the circumstances of the case the Court awards the Claimant compensation in the amount of €4,000 in respect of the contraventions of Sections 19 and 21 of the Act.
Determination
The Decision of the Rights Commissioner is varied in terms of this Determination.
Signed on behalf of the Labour Court
Kevin Duffy
6th May, 2014______________________
JFChairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.