Case Number: DWT14120. Labour Court

• Court: Labour Court (Ireland)
• Judgment Date: 01 December 2014
• Docket Number: DWT14120

FULL RECOMMENDATION WTC/14/144 DETERMINATIONNO.DWT14120 (R-143071-WT-14/EH & R-143585-WT-14/EH); SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 ; PARTIES : ZAFER BARS LTD IN LIQUIDATION; (REPRESENTED BY THOMAS FOX & CO); - AND -; HELI CSABA; (REPRESENTED BY RICHARD GROGAN & ASSOCIATES); DIVISION : Chairman: Mr Hayes; Employer Member: Mr Murphy; Worker Member: Ms Tanham

SUBJECT:
1. Appeal against Rights Commissioner Decision R-143071-WT-14/EH & R-143585-WT-14/EH


BACKGROUND:

2. The Worker appealed the Rights Commissioner's Decision to the Labour Court on 15th October, 2014. A Labour Court Hearing took place on 10th December, 2014. The following is the Labour Court's Determination:




DETERMINATION:

This is an appeal by Ms Heli Csaba (the Complainant) against the quantum awarded by a rights commissioner. Zafer Bars Ltd (the Respondent) is in liquidation. Mr Tom Musiol, of Thomas P. Fox & Co has been appointed as liquidator to the Respondent. Mr Musiol, though notified of the appeal, did not attend the hearing when the matter came before the Court.

The decision of the Rights Commissioner issued on 10 October 2014. The appeal was filed with the Court on 15 October 2014. The Complainant subsequently withdrew his appeal against the Rights Commissioner’s decision regarding an alleged infringement of Section 17 of the Act. He also withdrew his appeal against the Rights Commissioner’s decision that the Respondent did not infringe the Act by no including a commitment to work on Sunday in the contract of employment. The case came on for hearing on the 10^thDecember 2014.

Background

The Complainant worked for the Respondent as a Chef from 4 May 2012 until 11 April 2014. He made a number of complaints to the Rights Commissioner under the Organisation of Working Time Act 1997.

Complaints

Section 14 Complaint

Section 14 of the Act, in relevant part, states

• 
  (1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely—
  • (a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or

    (b) by otherwise increasing the employee's rate of pay by such an amount as is reasonable having regard to all the circumstances, or

    (c) by granting the employee such paidtimeoff from work as is reasonable having regard to all the circumstances, or

    (d) by a combination of two or more of the means referred to in the preceding paragraphs.

The Complainant told the Rights Commissioner that he was required to work each Sunday in the relevant period. He stated that the fact of having to work on that day was not otherwise taken account of in the determination of his pay. He stated that he was not compensated by any of the means set out in the Act by his employer for being required so to work. He argued that as a consequence the Respondent breached section 14 of the Act.

The Rights Commissioner decided that the complaint was well founded and awarded the Complainant compensation in the sum of €1,762.50 made up of €1,462.50 economic loss and €300 compensation for the breach of section 14 of the Act. The Complainant appealed against the compensation awarded for the breach of the Act.

In his submission to the Court the Complainant argued that the Respondent infringed section 14 of the Act on each and every Sunday on which he was required to work. He argued that such a persistent infringement of his entitlement under the Act should not be treated lightly and should attract a level of compensation that is both just and equitable in all the circumstances and that is persuasive and dissuasive of the employer infringing his rights into the future. He argued that compensation of €300.00 was not adequate to that end.

In doing so he drew the Courts attention to the decision of the CJEU inSabine von Colson and Elisabeth Kamann v Land Nordrhein-WestfalenCase 14/83 and Wolfgang Lange v Georg Schunemann GmbH Case C350/99 and to a decision of Hogan J in Browne v Iarnrod Eireann-Irish Rail [2014] IEHC 117. He argued that those cases require the Court to make awards of compensation that are “tangible and significant, without being excessive or even generous. ” Hogan J in Browne v Iarnrod Eireann-Irish Rail [2014]. He argued that the compensation awarded in this case did not meet that standard.

Findings of the Court

The Court notes that the Rights Commissioner decided that the complaint was well founded. In his decision he states“ I find that he [the Complainant] is owed 26 Sundays X 7.5 hours (1/2) = €1462.50 for the economic loss and compensation of €300 for the breach of his rights under this Act.”This suggests that the Rights Commissioner decided that the Respondent infringed section 14 of the Act on all of the Sundays that fell in the relevant period. The Court also notes that the total value of the economic loss suffered by the Complainant was €1462.50. In assessing the level of compensation to award the Complainant for the breach of his rights under the Act the Court must decide on an amount that is just and equitable in all the circumstances. There is no test that the Court can rely on in arriving at that figure. It is a matter of judgement for the Court to apply its expert knowledge in all the circumstances of the case. Mr Grogan, solicitor for the Complainant, was invited to make submissions on how the Court should arrive at a figure for compensation. However he did not identify a test that the Court could apply nor did he identify any other method or authority to which the Court should have regard. Accordingly the Court relied on its expert knowledge in arriving at the level of compensation to be awarded.

In this case the Court finds that the complainant’s statutory entitlements were infringed on 26 occasions in the relevant period. The Rights Commissioner awarded a combined level of compensation of €1,762.50. The Court finds that this sum is not sufficient in all the circumstances of this case. The Court directs the Respondent to pay the Complainant compensation in the sum of €2212.50.

Determination

The appeal is upheld. The Court orders the Respondent to pay the Complainant compensation in the sum of €2212.50 which sum includes the economic loss decided by the Rights Commissioner and €750.00 compensation for the infringements of section 14 of the Act. The decision of the Rights Commissioner is varied accordingly.

The Court so determines.

Section 12

Section 12 of the Act, in relevant part, states

• (1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

(2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1)

The Rights Commissioner decided as follows

“I find that he[ the Complainant] did not get proper breaks in this employment and the employer has breached Sec 12 of the Act. I award compensation of €350.00”

The Complainant appealed against the quantum awarded by the Rights Commissioner. He stated that the entitlement to breaks under Section 12 gives effect to Council Directive 93/104/EC of November 23, 1993 concerning certain aspects of the organisation of working time. He argued that the provisions of breaks is an important matter of safety and health at work and is a fundamental right of workers in E.U. law.

He argued that a breach of his entitlement under the Act should not be treated...