FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : FIRST DIRECT LOGISTICS LIMITED (REPRESENTED BY PENINSULA BUSINESS SERVICES (IRELAND) LTD) - AND - PRZEMYSLAW STANKIEWICZ (REPRESENTED BY BLAZJ NOWAK) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appeal against Rights Commissioner's Decision r-134258,133476,133480 to 133488-wt-13/JT.
BACKGROUND:
2. The Worker appealed the Rights Commissioner's Decision to the Labour Court on 4th February, 2014. A Labour Court Hearing took place on 6th May, 2014. The following is the Labour Court's Determination:-
DETERMINATION:
This is an appeal by Przemysaw Stankiewicz (the Claimant) against the Decision of a Rights Commissioner in his claim under Organisation of Working Time Act 1997 (the Act) against his former employer First Direct Logistics Limited (the Respondent).
The Claimant contends that the Respondent contravened Sections 14, 13(5), 17, 19 and 23 of the Act.
Findings of the Court
Applicability of the Act
In Determination DWT1398,Lucey Transport Limited and Marius Serenasthis Court held that following the promulgation of S.I. 36/2012, the provisions of European Communities (Road Transport) (Organisation of Working Time of Persons Performing Road Transport Activities) Regulations 2012 set down the applicable law concerning the regulation of working time of those to whom the Regulations relate. The Court adopted the reasoning contained in that Determination.
Consequently, only those provisions of the Act that do not relate to working time, including rest and intervals at work, are applicable to workers whose employment comes within the ambit of the aforesaid Regulations. Section 14 (Sunday work) Section 17 (provision of information on starting and finishing time) Section 19 and Section 23 (which relate to annual leave and cessor pay) are applicable in this case. Section 13 of the Act overlaps with the Regulations and is not applicable to those to whom the Regulations apply.
Section 14
The Claimant contends that he worked on 11 Sundays in the 26 week period prior to the initiation of his claim. The Respondent accepts that to have been the case.
The Court finds that this complaint is well-founded. It awards the Claimant compensation in the amount of €500.
Section 17
This Section provides, in effect, that in cases where a worker’s contract of employment does not specify a fixed starting and finishing time the employer shall furnish the worker with at least 24 hours’ notice of his or her starting and finishing times on the following day. The Respondent contends that having regard to the exigencies of it's business the application of this provision is impracticable. In advancing that submission the Respondent relies on the Decision of this Court in Determination DWT1416,DMR Transport Limited and Jacek Majchrzek.
The case is not apposite in the instant case. In that case the Claimant had regular starting times but his finishing times were dictated by the pace at which he completed the work to which he was assigned. The Court took the view that it was the Claimant rather than his employer that determined his finishing time. On that basis the Court held that Section17 of the Act had not been contravened.
The circumstances of the instant case are materially different. The Claimant’s contract of employment did not specify either a starting or finishing time. The Claimant did not control or influence his starting or finishing times. While those times may have been influenced by the exigencies of the business, they were nonetheless determined by the Respondent. Except in the circumstances referred to at subsection (4) of Section 17 of the Act (which are not relevant in this case) the Section does not provide any exemption from the requirement as to notification based on the general or continuing exigencies of a business.
In these circumstances the Court finds that Section 17 was contravened by the Respondent in relation to the Claimant. This complaint is therefore well-founded.
The Court awards the Claimant compensation in the amount of €500 in respect of this contravention.
Sections 19 and 23
There appear to be two aspects to these claims. Firstly, the Claimant submits that he was absent on sick leave from 18thJuly 2011 to 16thOctober 2012. He is claiming an entitlement to annual leave in respect of the period during which he was absent from work.
Secondly, the Claimant is claiming that he had a full entitlement to four weeks' annual leave in respect to the leave year ending on 31stMarch 2013 by virtue of having worked 1,365 hours in that leave year. The Claimant’s employment ended on or about 7thMarch 2013.
With regard to the first aspect of his claim the Claimant is relying on Directive 93/104/EC, as amended, and on the jurisprudence of the CJEU in interpreting that Directive in so far as it affects the holiday entitlement of workers. Apart from referring to the Directive, the Claimant, through his representative, made no arguments or submissions on the legal basis upon which he relies in contending that his claim should be determined by reference to the Directive rather than by application of the Act. The Court cannot decide a case on a basis that has neither been contended for nor argued before it. According, the Court must hold that the Claimant has not put any arguments or submissions to it in support his claim. In these circumstances the Court must hold that this aspect of the claim is not well-founded.
With regard to the second aspect of this claim, the Claimant appears to rely on Section 19(1) of the Act in contending that by having worked 1,365 hours in the relevant leave year he accrued a full entitlement to annual leave in that year. He contends that his cessor pay, on the termination of his employment, should have been calculated on that basis in accordance with Section 23 of the Act.
Section 19(1) of the Act provides: -
- 19.—(1) Subject to theFirst Schedule(which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—
- (a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),
(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or
(c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):
- (a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),
The Court finds that the claims in relation to Sections 19 and 23 are not well-founded.
Determination
The Court finds that the Respondent did contravene Sections 14 and 17 in relation to the Claimant. It directs the Respondent to pay the Claimant compensation in the amount of €1,000 in accordance with this Determination.
The Decision of the Rights Commissioner is varied accordingly.
Signed on behalf of the Labour Court
Kevin Duffy
9th May, 2014______________________
JFChairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.