FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : GOODE CONCRETE LTD (REPRESENTED BY REIDY STAFFORD SOLICITORS) - AND - DERMOT MUNRO (REPRESENTED BY LEWIS E. CITRON & COMPANY) DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Appeal against Rights Commissioner's decision WT17967/03/GF
BACKGROUND:
2. The worker commenced employment with the Company in April, 2002, and took up the position of concrete batcher within the Company in January, 2003, until the termination of his employment with effect from the end of August, 2003. The worker contends that during the months of June to August, 2003, the Company was in breach of Section 11 of the Organisation of Working Time Act, 1997, in that he did not receive his daily rest period, that being 11 consecutive hours rest in each 24 hour period. He was not afforded daily rests and intervals in accordance with Section 12 of the Act in that he was not given 15 minute breaks every 4 hours or 30 minutes every 6 hours. On numerous occasions during the named period he worked 7 days a week and did not receive, in accordance with Section 13 of the Act, a rest period of at least 24 consecutive hours. He did not receive appropriate compensation in accordance with Section 14 of the Act in relation to his Sunday working. He regularly worked hours in excess of the average of 48 hours set down in Section 15 of the Act and his average weekly working hours were in excess of the statutory limit. The Company rejects the claim.
- The matter was referred to a Rights Commissioner for investigation and recommendation. The Employer did not attend the Rights Commissioner's hearing.
His findings and recommendation issued on the 6th September as follows:- “In the absence of the respondent company I have decided on the basis of the evidence before me that this complaint is well founded. I require the respondent company to pay the claimant compensation in the amount of six months salary”
On the 30th September, the Employer appealed the Rights Commissioner’s Recommendation to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997, on the grounds that the evidence of the worker at the Rights Commissioner's hearing was not correct. A Labour Court hearing took place on the 17th December, 2004. - “In the absence of the respondent company I have decided on the basis of the evidence before me that this complaint is well founded. I require the respondent company to pay the claimant compensation in the amount of six months salary”
DETERMINATION:
Mr. Dermot Munro complained that on numerous occasions during the period June to August 2003 his employer, Goode Concrete Ltd failed to provide him with the rest periods prescribed by sections 11, 12 and 13 of the Organisation of Working Time Act 1997 and that he was required to work in excess of the maximum weekly working hours prescribed by section 15 of the Act. He further complained that he was required to work on Sundays without receiving compensation in accordance with section 14 of the Act.
The claimant presented a complaint to a Rights Commissioner pursuant to section 27(2) of the Act. The respondent failed to attend before the Rights Commissioner who, on hearing the complaint, held with the claimant. The Rights Commissioner awarded the claimant compensation in an amount equal to six months pay. The respondent appealed to this Court.
The Case.
At the commencement of the hearing the appellant / respondent accepted that it did not maintain records in respect of the claimant’s employment at the material time, as is required by the by S.I. 473/2001:Organisation of Working Time (Records)(Prescribed Form and Exemptions) Regulations 2001, made pursuant to section 25 of the Act. Hence, in accordance with section 25(4) of the Act the onus of proving that the relevant provisions of the Act were complied with rests with the respondent.
Mr David Murphy who is a manager / supervisor with the respondent gave evidence. He said that the claimant did not work the hours claimed by him and that if he did work late it was at his own choice. Mr Murphy also told the Court that the respondent’s premises did not open on Sundays and that the claimant did not work on Sundays. He said that a canteen was available in which to take breaks during the day. In cross examination Mr Murphy agreed with Counsel for the complainant that he had been absent from work during part of the time material to this complaint.
The claimant gave evidence of having worked from 4 or 5 am to 6 or 7 pm on numerous occasions during the period June to August 2003 and not having received appropriate rest periods. He said that while he was not expressly instructed to work these hours the respondent would publicly rebuke him if work for which he was responsible was left undone. During the period in question the business was particularly busy. This was due to seasonal factors and was compounded by a number of other events, including the absence of the maintenance fitter, Mr Murphy’s absence, the temporary closure of another of the respondent’s plants. The claimant also gave evidence of having worked on a number of Sundays to undertake maintenance work on plant. He was alone on the premises on those occasions.
Conclusions.
The onus of proving compliance with the relevant statutory provisions rests on the respondent. The Court has carefully considered the evidence adduced by both parties. In so doing it is noted that Mr Murphy, who gave evidence on behalf of the respondent, was not at work during part of the time to which these complaints relate. Further, this witness accepted that the claimant did work late, but said that he did so voluntarily.
The claimant impressed the Court as a reliable witness and his account of what occurred at the material time is accepted as being generally correct. Accordingly, the Court is satisfied that the respondent has not discharged the burden of proving that the relevant provisions of the Act were complied with in respect of the claimant.
The Court therefore holds that the complaints herein are well founded and that the respondent contravened the provisions of sections 11, 12, 13, 14 and 15 of the Act in relation to the claimant.
Redress.
The claimant did not appeal against the quantum of compensation awarded by the Rights Commissioner. Nonetheless, the Court is entitled in this de novo hearing to form its own view of the adequacy of the award.
The obligation to provide rest periods is imposed for health and safety reasons. The right of workers to adequate protection of their health and safety in the workplace is a fundamental social right in European Law (see comments of Advocate General Tizzano inR v Secretary of State for Trade and Industry, ex parte Broadcasting, Entertainment Cinematography and Theatre Union [2001]IRLR 559 which were quoted with approval inRoyal Liver Assurance Limited v Mackin & Others High Court Unreported Lavin J 15th November 2002.
InVon Colson & Kamann v Land Nordrhein – Westfalen [1984] ECR 1891the ECJ has made it clear that where such a right is infringed, the judicial redress provided should not only compensate for economic loss sustained but must provide a real deterrent against future infractions. Section 27(3)(c) provides that compensation of such amount as is just and equitable having regard to all the circumstances, but not exceeding two years remuneration in respect of the employees employment may be awarded. In measuring the amount that is just and equitable the Court has taken account of the gravity of the infringements which it has found to have occurred. It has also had regard to the inconvenience and expense incurred by the claimant in pursuing this claim at first instance and in defending this appeal. It has measured the amount of compensation which is just and equitable at €15,000. The respondent is directed to pay the claimant compensation in that amount.
Signed on behalf of the Labour Court
Kevin Duffy
5th January, 2005______________________
JO'CChairman
NOTE
Enquiries concerning this Determination should be addressed to Joanne O'Connor, Court Secretary.