The complainant worked as a waiter for the respondent. He made a number of claims to a Rights Commissioner (RC) that the OWT Act was infringed by his employer, some of which were upheld. His claim that he was penalised by his employer contrary to Section 26 of the Act failed, however, and it was that decision which was the subject of this appeal to the Labour Court. The respondent did not attend the appeal hearing and so the case proceeded on the uncontested evidence of the complainant.

The complainant stated that he began work on 10th August 2013 at 11 a.m. and he expected to finish at 11 p.m. that night. He worked alone in the restaurant area and was so overworked that he did not have access to a break. During his shift, the proprietor of the respondent arrived in the restaurant and allegedly spoke to him in insulting language. The complainant then informed the proprietor that he was working alone and that he was entitled to a break. He gave evidence that the proprietor then followed him and head-butted him without warning. He left the premises immediately, reported the assault to the Gardai (a copy of the report was put in evidence) and did not return.

The Court noted that Section 26 of the OWT Act states that ‘an employer shall not penalise an employee for having in good faith opposed by lawful means an act which is unlawful under this Act’. In turn, if such a penalisation amounts to a dismissal, the employee affected has the option to bring a claim under the OWT Act itself or under the Unfair Dismissals Acts, but not under both. The complainant in this case did not have the required one year’s service to bring an unfair dismissal claim. It is worth noting, however, that under Section 27 of the OWT Act, compensation of up to two years remuneration may be awarded to a complainant, the same potential threshold of compensation set under the unfair dismissals legislation.

The Court concluded that the conduct of the employer in committing a serious and unprovoked assault on the complainant undermined the duty of mutual trust which lies at the root of every contract of employment, and was a repudiation of the contract amounting to dismissal. It was fully satisfied that the respondent’s conduct was a direct response to the issues raised by the complainant concerning access to statutory breaks and was therefore penalisation constituting dismissal under the OWT Act. The complainant was awarded €10,000 in compensation