FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : BROADFORD CLEANING & MAINTENANCE SERVICES LTD T/A DIRECT CLEANING SERVICES - AND - VOLODYMYR ZAMULINSKYY (REPRESENTED BY RICHARD GROGAN & ASSOCIATES, SOLICITORS) DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Mr McCarthy |
1. An appeal against a Rights Commissioner's Decision r-1338/59/60/62/66/68-wt-13/JW.
BACKGROUND:
2. The Worker appealed the Decision of the Rights Commissioner to the Labour Court on the 28th November 2013 in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 22nd April 2014. The following is the Decision of the Court:-
DETERMINATION:
This is an appeal by Volodymyr Zamulinskyy (the Claimant) against the decision of a Rights Commissioner in his claims against Broadford Cleaning & Maintenance (the Respondent) under the Organisation of Working Time Act 1997 (the Act)
The Respondent failed to attend the hearing of the appeal and was not represented. The Court is satisfied that the Respondent was advised of the date time and place of the sitting of the Court held to determine this appeal.
There are two aspects to the Claimant’s appeal. Firstly, he appealed against the decision of the Rights Commissioner to dismiss his claim relation to an alleged contravention of s.18 of the Act. The Rights Commissioner found that s.18 was inapplicable in the circumstances of this case.
Secondly, the Claimant appealed against the quantum of the awards made by the Rights Commissioner for contraventions of Sections 11, 12, 15 and 14 of the Act which the Rights Commissioner found to have occurred.
Section 18
This claim arose from a cessation of work at the place at which the Claimant worked as a result of industrial action. Following the resumption of work the Claimant was not re-engaged by the employer. The Claimant contends that he is entitled to the benefit of s.18 of the Act in respect of the period after the cessation of the industrial action until he formally resigned from the employment.
For present purposes it is sufficient to say that that there are no circumstances in which s.18 of the Act could have any application to the factual circumstances on which this claim is grounded. Accordingly the Decision of the Rights Commissioner in relation to s.18 of the Act is affirmed.
Appeal on Quantum
The Rights Commissioner awarded compensation as follows: -
•Breach of Section 11 (Daily Rest) €500•Breach of Section 12 (Breaks) €400
•Breach of Section 15 (Maximum Weekly Hours) €600
•Breach of Section 14 (Sunday Premium) €200
The Claimant contends that the award made by the Rights Commissioner was inadequate having regard to the gravity of the contraventions found to have occurred.
Conclusion of the Court
Having considered the uncontested submissions made on behalf of the Claimant the Court has concluded as follows: -
1.The contravention of s.11 of the Act was a continuing contravention. In these circumstances the award made by the Rights Commissioner is inadequate and should be increased. The Court awards the Claimant compensation in the amount of €1,000 for this contravention.2.The Court does not see any reason to interfere with the award made by the Rights Commissioner in respect of the contravention of s.12 of the Act.
3.The Contravention of s.15 of the Act was a continuing contravention. In these circumstances the award made by the Rights Commissioner is inadequate and should be increased. The Court awards the Claimant compensation in the amount of €1,000 for this contravention.
4.The Court does not see any reason to interfere with the award made by the Rights Commissioner in respect of the contravention of s.14 of the Act.
Determination
The appeal is in part allowed. The Decision of the Rights Commissioner is varied in terms of this Determination.
Signed on behalf of the Labour Court
Kevin Duffy
CR______________________
6th May, 2014Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.