FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : MICHAEL PAT CARPENDALE (REPRESENTED BY JAMES J. HALLY SOLICITOR) - AND - NILO DELA PENA (REPRESENTED BY BROPHY SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Grier Worker Member: Mr Nash |
1. Appeal against Rights Commissioner's Decision WT17896/03/DI
BACKGROUND:
2. The matter was referred to a Rights Commissioner for investigation and recommendation. The findings and recommendation issued on the 11th October, 20004 as follows:
"In the absence of any evidence to refute Mr. De La Pena's case I find in his favour and award him total compensation of €10,500 in respect of all of his claims under the Act.
Thisaward is subject to statutory deductions.
I instruct the Respondent to ensure that in the future there is full compliance with the terms of the Organisation of Working Time Act, 1997"
The Company 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 22nd October, 2004 on the grounds that the claimant did not work the hours claimed. A Labour Court hearing took place on the 14th June 2005.
DETERMINATION:
The employer appealed the decision of the Rights Commissioner WT17896/03/DI, which found in favour of the claimant's claims under the Organisation of Working Time Act, 1997 (the Act).
Preliminary Issue
As a preliminary point in this case, it is contended on behalf of the employer that the claimant is estopped from bringing a case under the Act where that claim could have been brought before the Employment Appeals Tribunal (EAT) in another case which was heard and decided by the EAT on 8th July, 2004, concerning his dismissal. In support of this contention he citedBarber v Staffordshire County Council [1996] 2All ER; Hancock v Doncaster Metropolitan Borough Council [1998] E.A.T. and Green & Another v Hampshire County Council [1997] 3291 ICR.
Council for the respondent submitted, that the claimant is not estopped from relying on the facts by the doctrine of res judicata because (a) the findings of the Employment Appeals Tribunal specifically state that the complaints in the present case were not matters for decision under the Unfair Dismissals Act and (b) the complaints are based on statutory rights contained in the Organisation of Working Time Act, 1997 which the claimant has opted to bring to this Court and over which this Court has seisin.
The Court cannot accept the employer's submission. Section 40 (1) of the 1997 Act states:
"As respects a failure to comply with any provision of Part 111 in relation to an employee or, with the consent of the employee, any trade union of which the employee is a member may, in lieu of presenting a complaint in respect of such a failure under section 27, include in proceedings to be instituted by him or her or it in respect of any matter under enactment referred to in the Table to section 39 (2) a claim for relief in respect of such a failure and where such a claim is included the following provisions shall have effect........."
Therefore, the Court will proceed to deal with the substantive matters. The claims before the Court are as follows:-
(i) outstanding annual leave
(ii) outstanding public holidays
(iii) non payment of Sunday premium
(iv) working in excess of 48 hours per week
There was considerable argument and conflict between the parties in relation to the facts of this case. The Court took witness evidence under oath from a number of witnesses.
The complainant's case
The complainant was employed by the respondent from 1st April, 2002, until 30th June, 2003. Council for the complainant stated that he had worked six days per week, every week, for the period of his employment. His hours of work were from 5am until 9.30 - 10.00am and from 10.30am to approximately 5.30pm. He worked every Sunday for approximately 8.5 hours and did not receive any additional premium. In total he worked 71 hours per week. He received 5 days annual leave in the entire period of his employment. He worked all public holidays and received no time off in lieu or premium payment.
The respondent's case
Counsel for the respondent denied that the complainant worked the hours stated by him. He submitted to the Court that the complainant worked 32 hours per week over a six-day period. He commenced at 5am and finished at 10am, except on Sundays when he worked an extra 2 hours. After those hours, the complainant worked for another employer. The respondent also denies that the complainant did not receive his appropriate annual leave and public holidays.
Court findings
Section 25(4) of the Act provides, in effect, that where an employer fails to keep records in respect of his or her compliance with a particular provision of the Act in relation to an employee, in proceedings before the Court the onus of proving compliance with that provision lies with the employer. In this case the Court is satisfied that the employer has failed to maintain adequate records to show that the Act was complied with in respect of the claimant and thus carries the burden of rebutting the evidence given by the claimant.
Having carefully considered the evidence, the Court finds that the employer has failed to prove, on the balance of possibilities that it complied with the Act in respect of the complainant during the period to which his claims relates. Accordingly, the Court makes the following findings:
Annual leave claim
The Court accepts that the claimant has an entitlement to outstanding annual leave and whether he worked 32 hours per week as advanced by the employer or 71 hours as advanced by the claimant's representative, he still has an entitlement to a maximum of four weeks annual leave under section 19 of the Act, for the leave year 1st April, 2002, to 31st March, 2003, and one third of a working week for each month in the leave year in which he has worked at least 117 hours.
The Court is satisfied that the total annual leave entitlement for the period was 25 days. The complainant accepts that he had taken annual leave during this period. However, a conflict arose between the parties as to the number of days already taken. On the basis of the evidence given by the claimant and in the absence of company records, the Court accepts the claimant's contention that he had taken 5 days leave. Therefore, the Court decides that the claimant has an outstanding entitlement to 20 days annual leave.
Public holidays
The employer does not contest the fact that the claimant worked all public holidays, with the exception of Christmas Day. Counsel for the claimant submits that he did not receive time off in lieu or additional pay for any public holiday, in accordance with section 21 of the Act. The Court therefore, finds that the complainant has an outstanding entitlement in respect of 12 public holidays. The respondent has produced no evidence to show compliance with the Act, either by the payment of a paid day off on the day; a day off within a month; an extra days annual leave or an extra days' pay, for any of the public holidays, including Christmas Day.
The Court finds that the employer has failed to prove, on the balance of probabilities that he complied with the Act in respect of the claimants entitlement to public holidays during the period to which his claim relates.
Therefore, the Court decides that the claimant has an outstanding entitlement to 12 public holidays.
Sunday premium
Counsel for the claimant sought a Sunday premium for his requirement to work on Sundays in accordance with Section 14(1) of the Organisation of Working Time Act, 1997, which states that:
- "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 into account of in the determination of his or her pay) shall be compensated by his or her employer for being required to work by the following means,
(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 that employee such paid time off 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 employer indicated to the Court that the claimant worked every Sunday from 2am until 10.30am; he accepted that no specific payment was paid for working on Sundays but held that a Sunday premium was factored into the worker's rate of pay.
The Court has examined the facts and does not accept the respondent's contention in this regard. In accordance with Section 14(3), the Court finds that the claimant has an outstanding entitlement to a Sunday premium, which the Court values at €850.
Weekly hours
Counsel for the claimant submitted that the employer was in breach of Section 15(i) of the Act. This section stipulates that an employer shall not permit a worker to work, in each period of 7 days, more than of average of 48 hours, calculated over a reference period.
The Court has not been able to reconcile the conflict of evidence on the number of hours worked by the claimant. On the basis that the onus is on the employer to keep records of hours of work in order to ensure compliance with the Act which the respondent failed to do, the Court has no alternative but to accept the claimant's contention that he worked in excess of 48 hours on a weekly basis. Therefore, the Court finds that the employer was in breach of section 15.
Determination
On the basis of the Court's findings the Court varies the decision of the Rights Commissioner and awards the complainant the following:-
(i) In respect of his complaint regarding outstanding annual leave the Court awards the sum of €1000.00.
(ii) In respect of his complaint regarding public holidays the Court awards the sum of €600.00.
(iii) In respect of his complaint regarding Sunday premium award the sum of €850.00.
(iv) The Court further awards €2,000.00 compensation for the infringements of the Act of which the complainant complained.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
25th July, 2005______________________
JB/DHDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jackie Byrne, Court Secretary.