FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : HARBOUR HOUSE LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - VYTAUTAS JURKSA DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioner's Decision R-047156-WT-06/TB
BACKGROUND:
2. The Worker, who is from Lithuania, was employed by the Company (a Hostel) as a receptionist/housekeeper from 22nd August, 2003, to 9th November, 2006. He claims that he did not receive his proper entitlements under the Organisation of Working Time Act, 1997, (the Act) and that the Company was in breach of the following Sections of the Act:
Sections 11, 13(2), 14(1), 15(1), 17, 19, 20(2)(C), 21.
In general the claims involved not getting sufficient breaks/rest periods, not being compensated for working on Sundays, not getting an unbroken period of two weeks' annual leave and not receiving proper compensation for working Public Holidays, Sundays, Bank Holidays.
The Case was referred to a Rights Commissioner and his decision was as follows:
"Based on the evidence I uphold the complaint that the claimant did not receive an unbroken period of the weeks holidays as required by Section 19(3) of the Act.
It is not clear that the claimant was paid a premium for Sunday or Public Holidays and I therefore uphold this complaint.
I require the respondent to pay the claimant €2,000 in compensation."
Bothparties appealed the decision, the Company on the 6th July, 2007, and the worker on the 9th July, 2007, under Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 13th February 2008 in Sligo. The following is the Court's determination:
DETERMINATION:
This is a complaint by Mr. Vytautas Jurksa (the Complainant) alleging that his former employer, Harbour Hotel Limited (the Respondent), contravened the Organisation of Working Time, 1998, (the Act).
The Rights Commissioner found against the Respondent and held that the Complainant had not received an unbroken period of 2 weeks' annual leave as required by Section 19 (3) of the Act and that he was not paid a premium for working Sundays or Public Holidays. The Rights Commissioner required the Respondent to pay the Complainant the sum of €2,000 compensation.
Both the Complainant and the Respondent appealed to this Court. In his appeal, the Complainant proceeded to make new complaints under the Act, complaints that had not been made to the Rights Commissioner.
The Labour Court’s jurisdiction under the Act arises under Section 28 of the Act which provides for a party to appeal to the Labour Court from a decision of a Rights Commissioner. Its jurisdiction is solely an appellate one and any claim arising from first instance before it cannot be entertained by the Labour Court, as the Court has not been given such powers by the statute. Therefore, this Court cannot entertain the new claims put forward by the Complainant at the hearing on 13th February 2008.
The Complainant has brought a number of claims under various sections of the Act. Since the employer can avail of certain exemptions under some of these claims, particularly under Sections 11 and 13, the Court proposes to deal with those claims separately from the rest. The specific claims in relation to those Sections are:
(i) Section 11 Daily Rest Breaks
The Complainant submitted evidence of 6 weeks in August and September, 2006, when he did not receive his daily rest break in accordance with the provisions of section 11 of the Act, which states:
- Section 11. An employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer.
(ii) Section 13 - Weekly Rest Periods
The Complainant submitted evidence of 16 incidents between the end of May and the beginning of October 2006 when he did not receive a weekly rest break in accordance with the provisions of section 13 of the Act, which states.
- 13 (1) In this section “daily rest period” means a rest period referred to in section 11.
(2) Subject to subsection (3), an employee shall, in each period of 7 days, be granted a rest period of at least 24 consecutive hours; subject to subsections (4) and (6), the time at which that rest period commences shall be such that that period is immediately preceded by a daily rest period.
(3) An employer may, in lieu of granting to an employee in any period of 7 days the first-mentioned rest period in subsection (2), grant to him or her, in the next following period of 7 days, 2 rest periods each of which shall be a period of at least 24 consecutive hours and, subject to subsections (4) and (6) -
- (a) if the rest periods so granted are consecutive, the time at which the first of those periods commences shall be such that that period is immediately preceded by a daily rest period, and
(b) if the rest periods so granted are not consecutive, the time at which each of those periods commences shall be such that each of them is immediately preceded by a daily rest period.
- (a) if the rest periods so granted are consecutive, the time at which the first of those periods commences shall be such that that period is immediately preceded by a daily rest period, and
Section 4 of the Act provides for exemptions in situations each time an employee changes shift and in situations where an employee’s work involves periods of work spread out over the day. It states:
1.Without prejudice to Section 6, section 11 or 13 or, as appropriate, both these sections shall not apply, as respects a person employed in shift work, each time he or she changes shift and cannot avail himself or herself of the rest period referred to in section 11 or 13 or, as the case may be, both those sections.2.Without prejudice to section 6, sections 11 and 13 shall not apply to a person employed in an activity (other than such activity as may be prescribed) consisting of periods of work spread out over the day.
3.Subject to subsection (4), the Minister may by regulations exempt from the application of section 11, 12, 13, 16 or 17 any activity referred to in paragraph 2, point 2.1. of Article 17 of the Council Directive, or any specified class or classes of such activity, and regulations under this subsection may, without prejudice to section 6, provide that any such exemption shall not have effect save to the extent that specified conditions are complied with
Section 6 stipulates that where these exemptions are allowed compensatory rest must be provided. The employer must ensure that the employee has available a rest period and break that, in all the circumstances, can reasonably be regarded as equivalent to the afore-mentioned rest period and break.
Organisation of Working Time (General Exemptions) Regulations 1998 (S.I. No. 21 of 1998) provides: -
- These provide that persons employed in the activities specified in the Schedule shall be exempt from the application of sections 11, 12, 13 and 16 of the Act. The specified activities are:
(b) the nature of which is such that employees are directly involved in ensuring the continuity of production or the provision of services, as the case may be;
and, in particular, any of the following activities—- (i) the provision of services relating to the reception, treatment or care of persons in a residential institution, hospital or similar establishment,
(ii) the provision of services at a harbour or airport,
(iii) production in the press, radio, television, cinematographic, postal or telecommunications industries,
(iv) the provision of ambulance, fire and civil protection services,
(v) the production, transmission or distribution of gas, water or electricity,
(vi) the collection of household refuse or the operation of an incineration plant,
(vii) any industrial activity in which work cannot, by reason of considerations of a technical nature, be interrupted,
(viii) research and development,
(ix) agriculture,
- (i) the provision of services relating to the reception, treatment or care of persons in a residential institution, hospital or similar establishment,
The Respondent is a holiday hostel located in Co. Sligo. It is privately owned and can accommodate 48 guests. At the pertinent time, the Complainant was responsible for the running of the hostel. The Court is satisfied that the Complainant can be classified as aperson employed in one the activities specified by S.I. No. 21 of 1998 – namely, tourism. Therefore, the employer must ensure that he had available rest periods that, in all the circumstances, could reasonably be regarded as equivalent to those provided by the Act.
Regulation 4 of S.I. 21 states that if an employee is not entitled, by reason of the exemption, to the rest period referred to in Sections 11, 12 and 13 of the Act then the employer shall ensure that the employee has available to himself or herself a rest period and break that, in all the circumstances, can reasonably be regarded as equivalent to the first mentioned period and break.
S.I. No. 44 of 1998, The Code of Practice on Compensatory Rest, provides further guidance as to what may be an appropriate rest period.
Regulation 3.2 of S.I. 44 of 1998 states that equivalent compensatory rest should be given as soon as possible after the statutory rest has been missed out on.
The Court's findings in relation to alleged breaches of Sections 11 and 13.
Daily rest period - Section 11
Having examined the records produced by both the employer and the complainant, the Court is satisfied that there were breaches of the Act on the occasions listed when the complainant did not receive 11 hours consecutive rest. However, when account is taken that this was a hostel, whose busiest time was during the summer months, and the Complainant was often required to work split shifts during the day. Of the breaches which occurred, the Court is satisfied that there were 5 occasions when he received 11 hours rest break, although not consecutive, and the Court is satisfied in the circumstances of this case and taking account of the provisions laid down in S.I. 44 of 1998, that he received equivalent compensatory rest as soon as possible after the statutory rest has been missed out on. On 11 occasions the Court is satisfied that he did not receive the necessary equivalent rest.
The Court is satisfied that the appropriate form of redress is an award of compensation.
Weekly rest period - Section 13
Having examined the records produced by both the employer and the complainant, the Court is satisfied that there were breaches of the Act on the 16 occasions listed when the Complainant did not receive 24 hours consecutive rest in each period of 7 days. The Court is not satisfied that he received equivalent compensatory rest as soon as possible after the statutory rest has been missed. He was required to work 7 days each week out of 16 weeks in this period and he was not compensated in the weeks surrounding these weeks.
The Court is satisfied that the appropriate form of redress is an award of compensation.
The remainder of the Complainant's complaints are as follows:
(iii) Section 15 - average of 48 hours per week
The Complainant submitted that he was required to work more than an average of 48 hours per week in the six-month period, prior to his dismissal on 9th November 2006, in contravention of Section 15 of the Act, which states:
- Section 15 (1) An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period”) that does not exceed—
- (a) 4 months, or
(b) 6 months—
(i) in the case of an employee employed in an activity referred to in paragraph 2, point 2.1. of Article 17 of the Council Directive , or
(ii) where due to any matter referred to in section 5, it would not be practicable (if a reference period not exceeding 4 months were to apply in relation to the employee) for the employer to comply with this subsection,
- (a) 4 months, or
Having examined the work records provided by both the Employer and the Complainant for the six months in question, the Court notes that he was required to work on average 54.9 hours per week. Therefore, the Respondent was in breach of Section 15 of the Act.
The Court is satisfied that the appropriate form of redress is an award of compensation.
(iv) Section 17 Provision of information in relation to working time
The Complainant contended that he was not given prior notification before each working day of his hours of work. Furthermore, he held that he was not given notification at least 24 hours in advance of any additional hours he was required to work, in accordance with the provisions of section 17 of the Act, which states:
- 17 (1) If neither the contract of employment of the employee concerned nor any employment regulation order, registered employment agreement or collective agreement that has effect in relation to the employee specifies the normal or regular starting and finishing times of work of an employee, the employee's employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in each week that he or she proposes to require the employee to work, of the times at which the employee will normally be required to start and finish work on each day, or, as the case may be, the day or days concerned, of that week.
(2) If the hours for which an employee is required to work for his or her employer in a week include such hours as the employer may from time to time decide (in this subsection referred to as “additional hours”), the employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in that week on which he or she proposes to require the employee to work all or, as the case may be, any of the additional hours, of the times at which the employee will be required to start and finish working the additional hours on each day, or, as the case may be, the day or days concerned, of that week.
The Respondent told the Court that the Complainant’s hours of work were fairly standard. He was informed each week of the hours he would be required to work. During the peak season months (May to end of August) he was required to work a split shift system, working mornings and evenings. During the off-season he was required to work evenings. The Respondent stated that if there were any additional hours worked these were during emergencies, e.g. where the Complainant may have been called upon during the night to deal with disturbances in the hostel. The Complainant was paid overtime for these additional hours.
In all the circumstances, the Court does not accept that there was a breach of Section 17(1) or (2) of the Act.
(v) Section 14 - Sunday work
The Complainant submitted that he was not compensated for working on Sundays for the period 22nd August, 2003, to 15th May, 2006. He told the Court that he was paid double time for all Sundays worked from 15th May, 2006.
The Court is satisfied that the period of claim is outside the time limit provided under Section 27(4) of the Act and that there was no application made for an extension of the time limit under Section 27 (5). Therefore, the Court has no jurisdiction to hear the complaint.
(vi) Section 19 - Annual Leave
The Complainant submitted that he did not receive an unbroken period of two weeks' annual leave, in contravention of Section 19 of the Act. The Respondent told the Court that the Complainant’s annual leave was restricted during its peak summer months and otherwise it had no difficulty with the timing/length of leave.
The Complainant told the Court that when he sought two weeks' leave in January/February 2006 that he was only allowed 6 consecutive days. The Respondent replied that as this was their slackest time, it had no difficulty giving such time off, but that the Complainant had never made a request for two unbroken weeks leave.
Section 19 (3) states:
- The annual leave of an employee who works 8 or more months in a leave year shall, subject to the provisions of any employment regulation order, registered employment agreement, collective agreement or any agreement between the employee and his or her employer, include an unbroken period of 2 weeks.
- (i) the need for the employee to reconcile work and any family responsibilities,
(ii) the opportunities for rest and recreation available to the employee,
The Court is satisfied that if the employee had requested an unbroken leave period of two weeks it would have been granted. Therefore, it finds that the Respondent was not in breach of this Section of the Act.
(vii) Section 21 - Public Holidays
The Complainant submitted that he was not given fair entitlements in respect of public holidays. He stated that he had been paid double time for Public Holidays but had not received a day off in lieu in addition.
Section 21 states:
(1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—
(a) a paid day off on that day,
(b) a paid day off within a month of that day,
(c) an additional day of annual leave,
Determination
The Court has found that the Respondent has breached Sections 11, 13 and 15 of the Act. The Complainant’s complaints under these Sections are, therefore, well-founded.
Redress
The Court is satisfied that the appropriate form of redress is an award of compensation.
InVon Colson & Kamann v Land Nordrhein – Westfalen [1984] ECR 1891the ECJ has made it clear that the judicial redress provided should not only compensate adequately for economic loss sustained but must provide a real deterrent against future infractions. The Court measures the quantum, which is fair and reasonable in all the circumstances at €3,000 and directs the respondent to pay to the complainant compensation in that amount.
Accordingly, the decision of the Rights Commissioner is varied. The Court so determines
Signed on behalf of the Labour Court
Caroline Jenkinson
7th April, 2008______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.