Piotr Bryszewski v Fitzpatricks and Hanleys Ltd t/a Caterway and Another

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Birmingham
Judgment Date21 May 2014
Neutral Citation[2014] IEHC 263
Date21 May 2014
Bryszewski v Fitzpatrick & Hanleys Ltd (t/a Caterway)

BETWEEN

PIOTR BRYSZEWSKI
APPELLANT

AND

FITZPATRICKS AND HANLEYS LIMITED TRADING AS CATERWAY
RESPONDENT

AND

THE LABOUR COURT
NOTICE PARTY

[2014] IEHC 263

[No. 154 M.C.A./2013]

THE HIGH COURT

Employment Law - Organisation of Working Time Act 1997 - Complaint to Labour Relations Commission - Arrangement of Breaks - Award of Compensation - Insufficient - Appeal

Facts: This case and the case of Ruskys v Gem Pack Limited & Anor [2013] were heard together. Both cases involved appeals pursuant to s. 28(1) of the Organisation of Working Time Act 1997(1997 Act). The appellant, a Polish national was employed by the respondent company, a wholesale supplier of fruit and vegetables. The appellant complained to the Labour Relations Commission as to the arrangements for breaks. The Rights Commissioner concluded there had been a small number of occasions when the claimant did not receive his proper break entitlements. The Rights Commissioner did not accept the entirety of the appellant"s evidence in respect of the breach of s. 12 of the 1997 Act, nor that there had been a breach of s.17 of the Act. The complaint under s.12 was considered well founded and the respondent paid the appellant €300 compensation. The appellant appealed to the Labour Court upon the basis it was insufficient and not in accordance with the provisions of Von Colson and Kamann v Land Nordrhein-Westfalen [1984].

Counsel for both appellants submitted the Labour Court failed to consider and apply the principles of effectiveness, deterrence and proportionality as derived from European law and to the judgment of Von Colson and Kamann v Land Nordrhein-Westfalen. Section 12 of the 1997 Act refers to rest and intervals at work and section 17 refers to the provision of information in relation to working time. The Labour Court concluded at Hearing while the appellant did avail of some rest during the work interruptions, such did not adequately meet the requirements of s. 12 of the Act of 1997. In relation to s. 17 of the 1997 Act, the Court concluded there was some non-compliance, but it was minor and that an award of €600 was fair. Section 28 of the 1997 Act refers to appeals from and enforcement of recommendations of a Rights Commissioner. Counsel for the appellant argued although the Labour Court doubled the Rights Commissioner"s award, it was disproportionate. Mr Justice Birmingham referred to the principles expressed in Von Colson & Kamann v Land Nordrhein-Westfalen. Mr Justice Birmingham also discussed and distinguished the case from this present case. Mr Justice Birmingham stated this appeal was an appeal on a point of law, in essence an appeal as to quantum and that jurisprudence required Courts to exercise restraint and deference when dealing with decisions of specialist Tribunals. Mr Justice Birmingham referred to the outcome of a number of appeals to the Labour Court in cases such as Henry Denny and Sons (Ireland) Limited v Minister for Social Welfare [1998], Hayes v Financial Services Ombudsman & Ors (2008), University College Cork v Bushin [2012] and Ashford Castle Limited v Services Industrial Professional Technical Union [2006].

Mr Justice Birmingham held there was no reason to hold the Court was unaware of the Von Colson & Kamann jurisprudence and discussed the cases of ISS Ireland Limited v Gfencheva [2011], O"Malley v Liachavicius [2007], Goode Concrete Limited v Karpauskas [2008] and Harbour House Limited v Jurksa [2008] to illustrate the Labour Court took breaches seriously. The appellant submitted the Labour Court erred in law in importing into its" assessment of damages a de minimis gloss, which it said was contrary to the principles in Von Colson & Kamann v Land Nordrhein-Westfalen. Mr Justice Birmingham held there was no substance in this criticism, that the Labour Court operated on the basis breaches of the legislation were actionable per se and without proof of special damage.

Held by Mr Justice Birmingham there was no basis for interfering with the decision of the Labour Court and the appeal on a point of law failed.

Appeal failed

ORGANISATION OF WORKING TIME ACT 1997 S28(1)

VON COLSON & KAMANN v LAND NORDRHEIN-WESTFALEN 1986 2 CMLR 430 1984 4 NLJ 473 1984 ECR 1891 (CASE C 14/1983)

FUSS v STADT HALLE (NO 2) 2011 2 CMLR 13 2011 IRLR 176 (CASE C 429/2009)

ORGANISATION OF WORKING TIME ACT 1997 S12

ORGANISATION OF WORKING TIME ACT 1997 S17

ORGANISATION OF WORKING TIME ACT 1997 S28(6)

TERMS OF EMPLOYMENT (INFORMATION) ACT 1994

HENRY DENNY & SONS (IRL) LTD v MIN FOR SOCIAL WELFARE 1998 1 IR 34 2000/5/1750

HAYES v FINANCIAL SERVICES OMBUDSMAN UNREP MACMENAMIN 3.11.2008 (EX TEMPORE) [TRANSCRIPT NOT AVAILABLE]

UCC v BUSHIN UNREP 2012 23 ELR 251 2012 IEHC 76

ASHFORD CASTLE LTD v SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION (SIPTU) 2007 4 IR 70 2006/3/487 2006 IEHC 201

ISS IRELAND LTD v GFENCHEVA UNREP LABOUR COURT 19.5.2011 WTC/09/155

O'MALLEY v LIACHAVICIUS UNREP LABOUR COURT 14.3.2007 WTC/06/59

GOODE CONCRETE LTD v KARPAUSKAS UNREP LABOUR COURT 22.2.2008 WTC/06/63

R (ON THE APPLICATION OF BROADCASTING, ENTERTAINMENT, CINEMATOGRAPHIC & THEATRE UNION (BECTU)) v SECRETARY OF STATE FOR TRADE & INDUSTRY 2001 1 WLR 2313 2001 AER (EC) 647 2001 3 CMLR 7 2001 ICR 1152 2001 IRLR 559 2001 ECR I-4881 (C-173/99)

ROYAL LIVER ASSURANCE LTD v MACKEN & ORS 2002 4 IR 427 2002/24/6152

HARBOUR HOUSE LTD v JURKSA UNREP LABOUR COURT 7.4.2008 WTC/07/53

1

JUDGMENT of Mr. Justice Birmingham delivered the 21st day of May 2014

2

1. This case and the case of Ruskys v. Gem Pack Limited & Anor. (Record No. 2013/153 M.C.A.) have, by agreement of all the parties, been heard together, i.e. in sequence one directly after the other. Both cases involve appeals pursuant to s. 28(1) of the Organisation of Working Time Act 1997 ("the Act of 1997"), from the decisions of the Labour Court by employees dissatisfied with the outcome of the proceedings. The point of law claimed to be identified by the appellants is the same point, though obviously the point is raised against different factual backgrounds in each case. In both cases the appellant is dissatisfied with the amount of compensation awarded by the Labour Court. The appellants say that the amount of compensation awarded is inadequate and that its inadequacy reflects a departure by the Labour Court from legal principles that were binding on it.

3

2. It is submitted, by counsel for both appellants, that the Labour Court failed to have regard to and failed to apply the principles of effectiveness, deterrence and proportionality as derived from European law and, in particular, the judgment of the European Court of Justice in Von Colson and Kamann v. Land Nordrhein-Westfalen ( Case C-14/83) [1984] E.C.R. 1891. The appellants submit that this is contrary to the established practice of the Labour Court and to the law in respect of awards of compensation for breaches of minimum working time limits and safeguards. Furthermore, the appellants assert that the Labour Court erred in law in importing a de minimis gloss into its assessment of damages contrary to the principles of effectiveness, deterrence and proportionality, and also contrary to the entitlement to compensation upon the establishment of a breach, without more, as reflected in the judgment of the Court of Justice of the European Union in Fuss v. Stadt Halle (No. 2) ( Case C-429/09) [2011] I.R.L.R. 176.

4

3. The factual background to this case is that the respondent is a limited company involved in the wholesale supply of fruit and vegetables to the catering industry. The appellant, a Polish national, was employed by the respondent since the 25 th May, 2010, and continued to be employed at the time of the Labour Court decision. During the period under consideration, the appellant employee worked as a relief driver for eighteen weeks and was paid €442.48 net per week.

5

4. The appellant was unhappy with the arrangements in place in relation to the taking of breaks and a complaint was made to the Labour Relations Commission. Written and oral submissions were provided by both parties. The Rights Commissioner issued a decision dated the 29 th January, 2013. The Rights Commissioner concluded that, based on the evidence at hearing and the records produced post-hearing, there had been a relatively small number of occasions when the claimant did not receive his proper break entitlements in breach of s. 12 of the Act of 1997. Interestingly, the Rights Commissioner stated that he did not accept the appellant's evidence in total in that regard. The Rights Commissioner did not accept, on the evidence adduced, that there had been a breach of s. 17 of the Act of 1997. However, so far as s. 12 of the Act was concerned, the complaint was regarded as well-founded and the respondent was required to pay to the appellant the sum of €300 in compensation. The appellant appealed to the Labour Court Of significance is the final paragraph of the written submissions of the appellant to the Labour Court which began:

"The employee would contend that the issue of the level of compensation awarded by the Rights Commissioner, even in respect of Section 12 alone, would not comply with the provisions of Von Colson and Kamann."

6

5. A Labour Court hearing took place on the 17 th May, 2013. The court concluded that the respondent did not have a structure in place by which the appellant could have access to specific dedicated breaks in the course of the working day. The court noted that the respondent's case was that there were normally interruptions in work during which employees took breaks. The Labour Court concluded that while the appellant did avail of some rest during the work interruptions, that did not adequately meet the requirements of s. 12 of the Act of 1997. In relation to s....

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9 cases
  • Case Number: DWT1560. Labour Court
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    ...In support of her contention she citedPiotr Bryszewski -v- Fitzpatricks and Hanleys Limited TIA Caterway and the Labour Court[2014] IEHC 263 where the High Court deemed that compensation of €3,000 was an appropriate level of compensation under the Act. Furthermore, she said that the Complai......
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