FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : PORTURLIN SHELLFISH LTD (REPRESENTED BY CORDUFF GUNNING & CO) - AND - NATALYIA GOLOVAN (REPRESENTED BY P.C. MOORE & CO.) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Mr O'Neill |
1. Appeal Against Rights Commissioner's Decision R-036912-Ud-05/GF
BACKGROUND:
2. This case concerns an appeal by the worker of Rights Commissioners Decision R-036912-Ud-05/GF. The issues in dispute related to annual leave entitlements and overtime.
The worker is claiming that she was not given the correct annual leave entitlements and frequently worked overtime without the appropriate notice. The Employer's position is that there was never a need for the worker to work additional hours as the factory closed at the same time every evening and all workers, with the exception of the cleaner, left at the same time. The Employer accepted that there was an outstanding annual leave entitlement of one weeks' pay which would be paid immediately. The worker's representative accepted that this matter was resolved and no longer formed part of the appeal.
The dispute was referred to a Rights Commissioner for investigation. The Rights Commissioner's decision issued on 16th March 2006 and did not find in favour of the worker.
On the 24th April, 2006 the worker appealed the Decision of the Rights Commissioner to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 18th October, 2007.
WORKER'S ARGUMENTS:
3 1 The worker was employed to work from 8.30a.m. until 5.15p.m. There worker was frequently required to work late without the required notice. This is a clear breach of the Organisation of Working Time Act, 1997.
COMPANY'S ARGUMENTS:
4 1 The factory closed at the same time each evening (5.15p.m.) All workers left the premises at the same time with the exception of the cleaner who was required to remain on the premises for 15 minutes after closure. On the basis of the closing time, there was never any need to work additional hours.
DETERMINATION:
Counsel for the complainant informed the Court that she commenced employment with Portulin Shell Fish Limited (the employer) from 23rd February 2004 until 27th June 2005, when her employment terminated. The complainant brought proceedings before a Right’s Commissioner on 15th November 2005 alleging that the employer failed to grant her annual leave in accordance with Section 19 and failed to notify her of a requirement to work additional hours in accordance with section 17 of the Organisation of Working Time Act, 1997 (the Act).
The Right’s Commissioner found in favour of the employer and held that the complaint was not well founded. The complainant appealed the Right’s Commissioner decision.
At the hearing of the appeal, Counsel for the employer accepted that there was one week’s outstanding annual leave due to the complainant and stated to the Court that this payment would be paid forthwith. Counsel for the complainant accepted that this was the amount outstanding and subsequently on 30th November, 2007 informed the Court that the payment was received. At the hearing Counsel for the complainant accepted that this aspect of the claim no longer formed part of the complainant’s appeal under the Act.
The Court took sworn evidence from the complainant in the course of which she said that her normal working hours were from 8.30am to 5.15pm, five days per week. She also gave evidence that on a regular basis she was required to work additional hours until 6.00pm and up to 7.15pm on some occasions.
Section 25 of the Act imposes an obligation on employers to maintain proper records to show whether the provisions of the Act are complied with. The form in which the records are to be maintained is prescribed by the Organisation of Working Time (Records) (Prescribed Form and Exemptions) Regulations 2001 (S.I.473 of 2001). Section 25 of the Act provides, in effect, that where records are not maintained in the manner required by the Section the onus is on the employer to prove compliance with the statutory provisions at issue.
Evidence was given on behalf of the employer by the proprietor, Ms. O’Donnell and by an employee Ms. Boylan. Ms. O’Donnell explained that due to the nature of the product produced by the company, hours of work did not vary and the complainant was never required to work additional hours. She stated that employee records were kept on the computerised payroll, which was reflected in the complainant’s pay slips at the end of every week. However, as the hours of work never varied she felt that there was no requirement to maintain daily records of her hours of work. She informed the Court that the complainant, along with four others received a pre-organised lift to and from work on a daily basis and that all those involved left work at the same time – 5.15pm, except for one person who was required to remain to clean up, she informed the Court that the complainant was not required to do the cleaning duties when the factory closed.
Ms. Boylan gave evidence that the factory closed at 5.15pm each evening and stated that the finishing times did not vary, regardless of the month or the season and that only one (named) person was required to stay on for 15 minutes for cleaning purposes.
The Court has considered all the evidence before it in this case and finds that the Employer has on the balance of probabilities, proved that the complainant’s hours of work were from 8.30am to 5.15pm and did not vary and it is satisfied that she was not required to work additional hours. Consequently, the Court finds that the employer was not in breach of section 17 of the Act.
Therefore, the Court finds no grounds to overturn the decision of the Right’s Commissioner and upholds his decision and the complainant’s appeal fails.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
30th November 2007______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.