FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : OLHAUSENS LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - VYTAS MURAUSKAS (REPRESENTED BY PC MOORE & CO) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Appeal Of A Rights Commissioner's Decision R-057299-Wt-07/Eh
BACKGROUND:
2. This case concerns an appeal by the worker of Rights Commissioner's Decision R-057299-wt-07/EH. The Claimant was employed by the Company from May 2006 until July 2007. It is his claim that he did not get proper rest breaks and was not sufficiently notified when the need to work additional hours arose. The Company's position is that the Claimant did receive his breaks and that they were in excess of the provisions of the Organisation of Working Time Act, 1997. The additional hours were clearly explained to the Claimant.
The dispute was referred to Rights Commissioner for investigation. His Decision issued on 21st May, 2008. The worker subsequently appealed the Rights Commissioner's Decision in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 7th August, 2008.
EMPLOYEE'S ARGUMENTS:
3. 1 The Company has provided in its contract of employment that all employees will clock in and clock out for their breaks. The Company was requested to produce such records but did not. The Company has shown a disregard for proper record keeping which is required under the Act.
2 The fact that the Claimant agreed to take on additional hours doing cleaning work does not change the requirement for advising the Claimant under Section 17 of the Act, as the Company has previously stated that these hours varied.
COMPANY'S ARGUMENTS:
4. 1 The Claimant had to take his breaks with everyone at the designated times because the production line actually stops.
2 The Claimant's contract of employment outlines his normal working hours. The Company offered the Claimant additional working hours, which he chose to work. These hours remained unchanged and the Claimant was aware, at all times, of these hours. The Claimant was under no obligation to work these additional hours.
DETERMINATION:
The claimantbrought proceedings before a Rights Commissioner claiming infringements of Section 11, 12, 15 and 17 of the Organisation of Working Time Act 1997.
The Rights Commissioner upheld the claim under section 12 and awarded €250 compensation. The worker appealed the Rights Commissioner’s decision, the employer did not appeal.
Mr. Grogan, Solicitor on behalf of the appellant, claimed that the employer had breached the Act, by not affording him his entitlement to the statutory daily rest and break periods in contravention of Section 11, and 12 of the Act. Furthermore, he stated that the employer had not notified the appellant with at least 24 hours notice prior to working “additional hours”, in breach of Section 17 of the Act.
Mr. Grogan informed the Court that the claim under Section 15 of the Act was withdrawn as he accepted that the appellant was not required to work in excess of 48 hours per week within the required reference period.
The Court has considered the oral and written submissions of both parties together with the witness testimony. The Court took evidence under oath from the appellant Mr. Vytas Murauskas (with the assistance of an interpreter, Mr. Suajunas Stelionis) and from Mr. Mindaugas Johucas, an employee of the Company.
Claim under Section 11 and 12, daily rest and break periods
The Court is satisfied that the appellant was not required to work after 7.00pm and before 6.00am every day, therefore, he received his daily rest entitlements under Section 11 of the Act.
Furthermore, the Court is satisfied that the appellant received his full entitlement to breaks when he was required to work from 6.00am to 4.30pm, it is accepted that during those hours he received a number of breaks totalling a minimum of 60 minutes. During those occasional periods when he was required to work until 6.00pm, the Act provides that he should have received a further break period of 30 minutes, after 12.00 noon. While it is accepted that he received a 10 minute break at 12.00 noon, the Court is not satisfied that sufficient evidence has been submitted to substantiate the employer’s contention that he received a total of 30 minutes during this period, therefore the Court finds that the employer was in breach of Section 12 (2) of the Act.
Claim under Section 17, Notification of Additional Hours
The Court is satisfied that the hours of work between 2.00pm and 4.30pm were additional to the appellant’s basic contracted hours, however, they were pre-agreed from the commencement of his employment, he worked these hours on a consistent basis and they were not decided “from time to time” by the employer. It was accepted by both sides that while the appellant was paid for the hours rostered, he did not have to remain at the workplace once the task was completed. Therefore, the Court is satisfied that they do not come within the scope “additional hours” as defined by Section 17 of the Act.
Section 17 of the Act provides as follows: -
(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 appellant was required to work later than 4.30pm on occasions when his colleague was on annual leave. The employer informed the Court that an established practice existed within the Company whereby these two workers covered for one another in each other absence and the Company paid double the rate to the worker rostered on the day. It stated that prior notification was given on such occasions; the Company’s witness substantiated this contention.
DETERMINATION
The Court varies the Rights Commissioner's decision by finding that the employer contravened Section 12 (2) and not Section 12 (1) of the Act. However, the Court concurs with the Rights Commissioner 's decision to award the sum of €250.00.
The Court determines that the employer must pay the sum of €250.00 in respect of the appellant’s claim under the Organisation of Working Time Act 1997.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
27th August, 2008______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to David P Noonan, Court Secretary.