FULL RECOMMENDATION
SECTION 28 (8), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : ST MARGARETS COUNTRY CLUB LIMITED (REPRESENTED BY MANAGEMENT CONSULTANCY SERVICES) - AND - MR DMITRIJ BURUNOV (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Ms O'Donnell Employer Member: Mr Murphy Worker Member: Mr McCarthy |
1. Appeal Of Adjudication Officer Decision No: ADJ-00013672 CA-00017954
BACKGROUND:
2. An Adjudication Officer hearing took place on 11 October 2018 and a Decision was issued on 23 July 2019. The Employee appealed the Decision of the Adjudication Officer to the Labour Court on 21 August 2019 in accordance with section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 21 October 2019. The following is the Determination of the Court:-
DETERMINATION:
Introduction
This is an appeal by Dmitrij Buronov against the decision of an Adjudication Officer in his complaints against his former employer St. Margaret’s Country Club Limited. The complaints were made pursuant to a contravention of the Organisation of Working Time Act 1997 (the Act). In line with the normal practice of the Court, the parties are referred to in this Determination as they were at first instance. Hence, Dmitrij Buronov is referred to as the Complainant and St. Margaret’s Country Club Limited is referred to as the Respondent.
The claims were lodged with the WRC on the 7thMarch 2018 therefore the cognisable period in accordance with the Act is 8thSeptember 2017 to the 7thMarch 2018.
Complainant’s case
The Complainant identified what he believed to be three breaches of the Act. 1) He was not given reasonable notice of his starting and finishing time in breach of section 17 of the Act. 2) His Sunday premium was not included in the calculation of his Public Holiday Pay and 3) His Sunday premium was not included in the calculation of his holiday pay.
Respondent’s case
In relation to the first alleged breach it is the Respondent’s submission that staff generally knew what their finishing time were . The Respondent drew the Court attention to the rosters for the relevant period where finishing times were shown except for on a few occasions when the finishing time was shown as “close”. It is the Respondent’s submission that all rosters since then have shown a specified closing time. In relation to the Public Holiday claim the complainant got paid for his Public Holidays at his normal rate of pay or was given a day off in lieu. In relation to the final claim that the calculation of his holiday pay should have included his Sunday premium the Adjudication Officer had awarded an allowance of 25% for three days which was 100 euro and the Respondent did not appeal same.
Discussion
In relation to the start/ finish times it was clear from the documentation submitted to the Court that start times were always on the roster but that within the cognisable period there had been some occasions where the finishing time had not been stated. The failure to provide a finishing time on those occasions did constitute a breach of the Act. The Court determines that compensation of €500 should be paid to the Complainant in respect of those breaches. In relation to the Public Holidays the Court notes that there were four public Holidays within the cognisable period . Applying the 25% premium that the Adjudication officer awarded as Sunday Premium to his daily rate of pay of €134 and multiplying it by 4 Public Holidays gives an economic loss of €134 during the cognisable period.
The Court determines that the economic loss of €134 plus compensation for the breach of €200 should be paid to the Complainant.
In relation to the final issue of the inclusion of the Sunday premium when calculating Holiday Pay the Court notes that the Complainant was entitled to 20 days annual leave for the period and calculates the economic loss arising as follows: 25% (the premium),divided by 5 to give a daily value of € 6.67 multiplied by 20 (days) giving an economic loss of €133.40. The Court determines that the economic loss of €133.40 plus compensation for the breach of €200 should be paid to the Complainant.
Determination
The Court Determines that there has been breaches of the Act and that the economic losses and compensation as set out above should be paid to the Complainant. The Decision of the Adjudication Officer is varied accordingly.
The Court so determines.
Signed on behalf of the Labour Court
Louise O'Donnell
MK______________________
18 November 2019Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary.