FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : SANDYFORD TRADING LTD T/A LETS EAT IN (REPRESENTED BY BEAUCHAMPS SOLICITORS) - AND - NAIK MANJUNATH (REPRESENTED BY MIGRANT RIGHTS CENTRE OF IRELAND) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Ms Ni Mhurchu |
1. Appeal Against Rights Commissioner's Decision R-047186-Wt-06/Mh
BACKGROUND:
2. The dispute before the Court concerns an appeal against a Rights Commissioner's Decision. The Worker concerned was employed with the Company over two separate periods of time between 1999 and 2006. It is claimed by the Worker that he originally left his employment in 2002 due to poor working conditions. He resumed his employment in July 2003 on foot of promises of improved working conditions. After the incorporation of the Company in July, 2006 the Worker was asked to sign a new contract. He did not do so due to concerns he had over the conditions of employment. The Worker made four claims to the Rights Commissioner alleging breaches of the Organisation of Working Time Act, 1997 (the Act). It was claimed the Company breached the Act in relation to rest intervals at work, hours of work, annual leave entitlements and Public Holiday entitlements.
The Rights Commissioner issued his Recommendation on 3rd April, 2007 in favour of the Worker. Compensation was awarded to the Worker for the Company's various breaches of the legislation. The Company did not attend the Rights Commissioner's hearing. The Company submitted an appeal of the Rights Commissioners Recommendation on the 25th April, 2007 in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 24th October, 2007.
WORKER'S ARGUMENTS:
3. 1 The Worker was expected to work in excess of 72 hours per week. No formal minimum rest periods were provided to the Worker. He received no payslips and no P60s for the first period of employment with the Company. He left the employment due to these poor conditions.
2 On resuming work for the Company, the Worker was promised an increased salary, a 39 hour shift week, 2 days off per week and payslips. However, he worked two shifts per day, 6 days per week with one day off. The Worker had no breaks other than that between shifts. He did not receive his statutory entitlements such as double time pay for Sunday work and days off in lieu for Public Holidays. In his entire period of employment, the Worker did not receive his Annual Leave entitlements.
3 The Worker was not aware of any records being kept by the Company as required under the Act.
COMPANY'S ARGUMENTS:
4. 1 The Worker was on a 6 day week working a maximum of 48 hours per week. Breaks were taken between 3.00pm and 4.00pm and again between 9.00pm and 11.00pm. There is no formal record of breaks as a clocking system was deemed by the employees to be difficult to operate given the working environment. The Worker's payslips indicates that he worked a 48 hour week. For any hours over 31 hours work, he received overtime rates and a higher rate was paid for Sunday work.
2 A lot of employees take extended holidays of approximately 6 to 8 weeks at any one time.During this time they are not paid and so their holiday entitlement is by payment in lieu on the basis of the number of weeks that they have worked per annum.
3 The Worker's claim for an entitlement to Public Holidays for 4 days between May 2005 and January 2006. This claim is statute barred.
DETERMINATION:
The claimant brought proceedings before a Rights Commissioner under Section 27 of the Organisation of Working Time Act, 1997(the Act). He complained that the respondent was in breach sections 12, 15, 19 and 21 of the Act.
He claimed (i) that the employer failed to provide him with break intervals in breach of Section 12, (ii) that he was required to work in excess of an average of 48 hours per week in breach of Section 15, (iii) that he was not granted the full amount of annual leave payment to which he was entitled in breach of Section 20 and (iv) he was not provided with his public holiday entitlements in breach of Section 21 of the Act
A Rights Commissioner hearing was held on 3rd April 2007. The respondent failed to attend for reasons, which were explained, to the Court. In these circumstances, the Rights Commissioner found that the complaint was well founded and awarded the worker the sum of €17, 500.00 in respect of the breaches of the Act. It is against that decision that the employer appealed the Right’s Commissioner’s decision.
The Employer produced detailed rosters for the period of the complainant’s employment with the Company and copies of weekly pay slips which recorded his basic pay, overtime payments, Sunday premium payments and holiday payments. These records show that the Complainant was paid for 31 hours at basic pay per week, eight hours at T + 1/3 for working on Sundays and nine hours at T + ½ for those weeks he was required to work overtime.
The worker was employed from 1999 until his employment terminated on 4th August 2006. He presented his claims under the Organisation of Working Time Act, 1997 to the Rights Commissioner on 10th November 2006.
In this appeal Counsel for the employer submitted that any claim in relation to an alleged contravention which related to a period more than six months before the lodgment of his claim is time barred pursuant to Section 27(4) of the Act.
Section 27(4) of the Act provides, in effect, that a complaint may not be entertained by a Rights Commissioner (or the Court on appeal) unless it is presented within a period of six months beginning on the date of the contravention of the Act to which the complaint relates. Section 27(5) provides that where reasonable cause is shown, this period may be extended by up to a further 12 months. No application for an extension of the time limit was made in this case.
In these circumstances the Court has jurisdiction to investigate allegations concerning breaches of the Act, which occurred within the period 11th May 2006 to 10th November 2006 (“the relevant period”). For the purposes of annual leave the Court can also entertain any portion of a claim which relates to annual leave involving the leave year 2005 to 2006, and 2006 to 2007 as both leave years fall within “the relevant period”.
Claimant’s Evidence
The claimant Mr. Naik Manjunath gave evidence in which he told the Court that he was required to work from 2.30pm to 1.00am and occasionally to 2.00am at the Company’s “Take Away” restaurant in Shankill. He said he was required to work six days per week, including Sundays and he received no formal breaks but was allowed to take a meal during his working time. He told the Court that he regularly worked 60 hours per week.
He said that at the end of the shift he normally gave a number of his fellow workers a lift to their homes. He said that he received no extra payment for working on Public Holidays. In addition he was not paid his annual leave entitlements.
Evidence of Mr. Chi Huang
Mr. Chi Huang gave evidence on behalf of the Appellant. He told the Court that he was employed as a Chef with the Company and worked at the Shankill premises since April 2007 and at its Blanchardstown premises since 2006, both premises are “Take Away” restaurants.
He stated that the premises was open for business from 5pm to 11pm on weekdays and 11.30pm at weekends. He stated that he was not required to work beyond the closing times and that no one else was required either. He stated that he worked 48 hours per week and received two breaks, a meal break before opening time and a shorter break before 11.00pm.
Evidence of Ms. Fatima Aziz
Ms. Fatima Aziz, daughter of the proprietor, gave evidence on behalf of the Appellant. She told the Court that she was in charge of payroll in the company since February 2006. She also gave evidence that the “Take Away” at Shankill was open for business from 5pm to 11pm on weekdays and 11.30pm at weekends and confirmed Mr. Huang’s evidence regarding the arrangements for breaks.
Ms. Aziz stated that the claimant was paid in respect of all outstanding annual leave and public holiday entitlements in his pay cheque on 29th July 2006. She told the Court that the Supervisor organised rosters and allocated break times.
Evidence of Mr. Anwar Aziz
Mr. Anwar Aziz the proprietor gave evidence on behalf of the Appellant. He told the Court that an agreement had been entered into with Mr. Manjunath’s Union, SIPTU in July 2005 concerning,inter alia, outstanding holiday entitlements and that monies were accepted by both Mr. Manjunath and his fellow employees in full and final settlement of all outstanding payments. He told the Court that there were some weeks when the claimant was required to work in excess of 48 hours and he was paid the appropriate premium rates.
Conclusions
The onus of proving compliance with the relevant statutory provisions rests on the Appellant. The Court has carefully considered the evidence adduced by both parties. All witnesses, including the claimant agreed on the opening hours of the Company’s business. The witnesses on behalf of the Appellant impressed the Court in the consistency of their evidence and the Court finds it credible that a “Take Away” restaurant would close its business at the appointed times and accepts that it would be an unlikely event that workers would be expected to work an additional two hours, where all the preparatory work is carried out before opening time.
The Appellant provided the Court with substantial documentation to substantiate their position. Copies of signed rosters, payslips and a breakdown of the claimant’s annual leave and public holiday entitlements were produced.
Having given careful consideration to the oral and written submissions of the parties and examined all the documentation presented, the Court finds as follows:
section 12 complaint : failure to provide rest intervals
The Court is satisfied from the evidence given that it was customary to allow employee sufficient time to consume a meal before normal opening times in the restaurant, estimated at between 20 to 30 minutes and a second shorter break before closing time. Therefore, the Court is satisfied that the claimant’s complaint is not well founded.
section 15 complaint: requirement to work in excess of an average of 48 per week
The Court found inconsistency with the evidence given by the claimant regarding hours of work; at the Rights Commissioner hearing he said that he regularly worked 50 hours per week, whereas at the Court he stated that it was 60 hours per week.
The Court is satisfied from the evidence given that the normal working arrangements, as evidenced from the signed rosters supplied by the Appellant, and the details provided on the payslips that employees were required to work six days per week, eight hours per day from 3.00pm to 11.00pm. On occasions he was required to work to finish at 11.30pm, consequently his roster on some days was from 4.00pm to 11.00pm to make up for the later finishing times. Therefore, the Court does not find that he was required to work in excess of 48 hours on average, over the reference period provided within the legislation. The Court finds that the claimant’s complaint under section 15 of the Act is not well founded.
section 20 complaint: failure to grant him annual leave payment
The claimant worked a total of 50 weeks in the leave year 2005/2006, commencing on 1st April 2005 to 31st March 2006 (he was on leave until 18th April 2005) and 18 weeks in leave year 2006 /2007. This entitled him to 19.23 days in respect of the 2005/2006 leave year and 6.92 days in respect of the 2006/2007 leave year. The Court notes from the information supplied by the Appellant that the claimant was paid 23 days pay on 8th August 2006, at the termination of his employment in respect of 14 outstanding annual leave and 9 public holiday entitlements.
The Appellant referred to an agreement made on 14th July 2005 between the parties in settlement of all outstanding annual leave payments due to that date. The claimant disputed the agreement and stated that no monies were paid on foot of it. A copy of the agreement, signed by both parties was supplied to the Court. The agreement does not specify the details of any monies due and paid to the claimant. Therefore, in the absence of any evidence to substantiate the Appellant’s position, the Court does not accept that it is estopped from investigating the period between the commencement of the leave year, on 1st April 2005 and the date of the agreement on 14th July 2005.
Consequently, the Court finds that the Appellant failed to provide the claimant with sufficient cessor pay for the leave years 2005/2006 and 2006/2007; the outstanding annual leave entitlement due to him is 12.15 days. The Court finds that the complaint under section 20 has been well founded.
Where a claimant has not received his or her statutory period of leave a claim cannot be made nor can an award be formulated as being for payment in lieu of holidays. Article 7 of the Working Time Directive expressly prohibits the payment of an allowance in lieu of annual leave except where the employment relationship has ended. In such cases the proper award should be in the form of compensation for loss of annual leave. Such an award need not be limited to the value of the lost holidays. The Court estimates the economic value of the leave withheld from the claimant as €1,157.00.
Having regard to the economic value of the leave in question and the need to provide a remedy which is proportionate, effective and dissuasive the Court awards the claimant compensation in the amount of €2,200.
section 21 complaint: failure to provide public holiday entitlements
Due to the limitations, which arise by virtue of section 27(4) mentioned above, the Court may only investigate complaints regarding outstanding public holidays in the relevant period. The payslip for the week ending 29th July 2006, supplied for the Court indicates a payment of €2189.60 in respect of holidays, which the claimant accepted was paid to him. The Appellant told the Court that this payment was in respect of annual leave and 9 public holidays (4 from 2005 and 5 from 2006. Details of the 5 paid public holidays in 2006 were given,viz.1st January, 17th March, 17th April, 1st May and 5th June.
Therefore, the Court is satisfied that the claimant received all his public holiday entitlements due under section 21 of the Act and this claim is not well founded.
Determination
The Court therefore holds that the only complaints which is well founded is in respect of the failure to pay the full amount of outstanding annual leave in cessor pay and that the respondent therefore, contravened the provisions of sections 20 of the Act in relation to the claimant.
The Court determines that an award of €2,200 should be paid to the claimant. Consequently, the Decision of the Rights Commissioner is varied accordingly.
Signed on behalf of the Labour Court
Caroline Jenkinson
17th December, 2007______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to David P Noonan, Court Secretary.