FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 28 (1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : BELLCHIME LIMITED T/A RISTORANTE ROSSINI (REPRESENTED BY BDM BOYLAN SOLICITORS) - AND - RAFFAELE PAPA (REPRESENTED BY FACHTNA O' DRISCOLL SOLICITORS) DIVISION : Chairman: Mr Haugh Employer Member: Ms Cryan Worker Member: Mr McCarthy |
1. Appeal of Rights Commissioner's Decisions No(S) R-154637-wt-15JOC and r-154638-te-15JOC
BACKGROUND:
2. A Rights Commissioner Hearing took place on 2 July 2015 and Decisions were issued on 30 September 2015. The Employer appealed the Decision of the Rights Commissioner to the Labour Court on 5 November 2015 in accordance with Section 28(1) of the Organisation of Working Time Act, 1997.
DETERMINATION:
Background to the Appeal
Raffaele Papa (“the Complainant”) was employed by Bellchime Limited T/A Ristorante Rossini in Cork (the Respondent) as a waiter between 18 September 2013 and 20 January 2015. The Rights Commissioner heard complaints referred by the Complainant under the Terms of Employment (Information) Act 1994 (“the 1994 Act”) and under the Organisation of Working Time Act 1997 (“the 1997 Act”). He found both complaints to be well founded and awarded the Complaint €500.00 for the Respondent’s failure to issue the Complainant with a detailed written statement of his terms and conditions in accordance with the Act of 1994. He also awarded the Complainant €1,500.00 for the Respondent’s failure to pay him a premium for Sunday work and to permit him to take adequate breaks during the working day as required by the Act of 1997.
The Respondent appealed from the decisions of the Rights Commissioner. Both appeals were listed to be heard together by the Court in Cork on 23 March 2016. The Complainant failed to appear on the day but made an application through his solicitor for a postponement on grounds that he was out of the country and was unable to travel to Cork due to illness. The Court acceded to the request but requested the Complainant’s solicitor to supply it with documentary evidence confirming the Complainant’s illness. This was never furnished to the Court.
The appeals were relisted for hearing on 14 July 2016. Again, the Complainant failed to appear personally. His solicitor attended. The Court had been furnished in advance with detailed written submissions by both parties’ representatives. It is clear to the Court from those submissions that all of the principal facts relevant to the matters on appeal are disputed between the parties.
As the Complainant failed to make a personal appearance on 14 July 2016 and gave no prior notification to the Court that that would be the case, the Respondent’s case on the appeal is uncontested. It followsthat the appeal succeeds and the Rights Commissioner’s decisions are set aside.
The Court so determines.
Signed on behalf of the Labour Court
Alan Haugh
20 July 2016______________________
MNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.