FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : FERGAL BRODIGAN T/A FB GROUNDWORKS (REPRESENTED BY NIAMH DOYLE & CO SOLICITORS) - AND - JURIS DUBINA (REPRESENTED BY P.C MOORE & CO SOLICITORS) DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. Appeal Of A Rights Commissioner's Decision R-060483-WT-08/EH.
BACKGROUND:
2. This case concerns an appeal by the Employer of Rights Commissioner's DecisionR-060483-WT-08/EH.The Worker was employed by the Company from 10th September, 2007, until 07th January, 2008.The Worker referred a case of alleged infringements of the Organisation of Working Time Act, 1997, to a Rights Commissioner for investigation and a hearing was arranged for 4th June, 2008. The Rights Commissioner's Decision was as follows:
- "I have decided based on uncontested evidence that the claim was well founded.
I require the employer to comply with Sec 12, 15, 17 and 23 of the Act.
I require employer to pay Mr Dubina compensation of €6,000 to be paid within six weeks of the date below."
The Company appealed this Decision to the Labour Court on 10th July, 2008, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 10th October, 2008.- "I have decided based on uncontested evidence that the claim was well founded.
DETERMINATION:
This is an appeal by Fergal Brodigan trading as FB Groundworks against the Decision of a Rights Commissioner in a complaint by Mr Juris Dubina under the Organisation of Working Time Act, 1997. The Rights Commissioner found that Mr Brodigan had contravened the Act in relation to Mr Dubina and awarded him compensation. Mr Brodigan appealed to this Court. Mr Brodigan had not appeared at the Rights Commissioner’s hearing and he was not represented.
The parties are referred to as they were in the first instance. Consequently Mr Dubina is referred to as the Claimant and Mr Brodigan as the Respondent.
This case was heard in conjunction with two other appeals, namely an appeal by the Respondent against the Decision of a Rights Commissioner in a complaint brought by the Claimant pursuant to the Safety Health & Welfare at Work Act, 2005, and an appeal by Mr Andis Slupskis against the Decision of a Rights Commissioner made under the Organisation of Working Time Act, 1997, in a claim against the Respondent herein.
Complainant’s Case:
The Complainant contends that he was not given rest breaks in accordance with the Act and that he was required to work excessive hours. He told the Court in evidence that he reported to the Respondent’s yard at between 6:00am and 6:30am daily and was transported to work. He finished work at 5:00pm or sometimes 5:30pm and was then transported back to the Respondent’s yard. He said that the journey took two hours each way. He said that he received one break of 20 minutes most days and occasionally two breaks of 20 minutes each. Occasionally he worked after six o’clock and did not receive an extra break. The Complainant also told the Court that when he was required to work late he did not receive advance notification. He said that he was required to work late on two or three occasions each week.
The Claimant also told the Court that he did not receive pay slips detailing his wages and deductions.
Respondent’s Case:
Evidence of the Respondent
Mr Fergal Brodigan, who is Managing Director of the firm, gave evidence before the Court. He said that the business was contracted to provide groundwork services to Dun Laoghaire-Rathdown County Council. He said that the work involved repairs to roads and footpaths and the laying of drains. At the time material to this claim there were eleven employees in the firm. The workforce was divided into “gangs” each of which was led by a foreman or ganger. He said that the workers were transported to their work location in a minibus owned by the firm. Workers called to the yard of the business between 6am and 6:30am daily and were transported to work. The minibus collected some employees on route. He told the Court that the travel time was approximately 45 minutes and the employees normally commenced work between 7-7:30am. At all times employees worked an 8 hour day and generally finished work between 3:15-3:30pm. The witness said that they would be back in the yard by 4pm or 4:30pm.
The witness told the Court that it was a condition of his contract that works would be finished by 4pm in the evening so as to avoid adverse impact on traffic. He said that he attended on the site for approximately four days of the week and so was aware of the hours which the employees worked.
In cross-examination the witness told the Court that he was instructed to finish work before 4pm by his Client’s engineer. He accepted that he had not asked this person to attend the hearing and give evidence. He also agreed that he did not have any documents in Court which would corroborate his evidence.
With regard to breaks, the witness told the Court that the nature of the work meant there was a degree of flexibility in the taking of breaks. Normally it was a matter for the foremen to decide when the breaks would be taken but breaks were taken in the morning between 9-10am and a further lunchtime break between noon and 1pm. The witness agreed that they did not maintain records of breaks or working hours at the material time.
Evidence of Mr Dermot Brodigan
Evidence was given by Mr Dermot Brodigan. This witness is a ganger with the Respondent and is in charge of a group of employees. He said that normally breaks were taken when it suited the requirements of the work. There were two breaks per day, one of between 10-15 minutes in the morning between 9am and 10am. Another break was taken and another of between 30-45 mins between midday and 1pm. He told the Court that he worked with the Claimant for approximately one month and the arrangements which he had outlined to the Court applied during that period.
This witness told the Court that he always obtained pay slips from the Respondent.
Evidence of Mr David Keelan
Mr David Keelan gave evidence to the Court. He told the Court that he was next in line to a foreman with the Respondent and had been employed by the Respondent for approx five years and he worked with the Claimant for a number of days during his period of employment. He said the normal arrangements within the employment were that employees began work around 7am and would finish at between 3pm and 3:15pm. He said that it was normal practice for employees to take breaks in the mornings and again after midday but that the taking of breaks was flexible depending on the type of work being performed.
Evidence of Mr Joe Williamson
Mr Joe Williamson gave evidence before the Court. He is General Manager for the Respondent. He is responsible for co-ordinating sales and invoicing and he is also responsible for payment of wages to the staff. He said staff were paid each Friday in cash. Their pay is placed in a sealed envelope together with their payslip and handed to them. This was always the case with the Complainant. He recalled the occasion of the Complainant’s dismissal. Mr Brodigan had told him that the Complainant was being dismissed and was told to arrange for his P.45 to be placed in his pay packet. This was on the 21st December 2007.
Failure to maintain records
The Respondent accepts that he did not maintain records showing compliance with the Act. Section 25(4) of the Act provides that where records are not maintained in the prescribed form the onus of proving, in proceedings before a Rights Commissioner and this Court, that the provisions of the Act have been complied with rests with the employer. This provision is clearly applicable in this case. It is thus for the Respondent to satisfy the Court, on the balance of probabilities, that the contraventions alleged by the Claimant did not occur.
Conclusions of the Court:
The Solicitor for the Claimant submitted that the Court should draw an inference adverse to the Respondent because of his failure to call the Local Authority Engineer to corroborate the evidence which he gave regarding the requirement to finish work by 4pm. The Court does not believe that it would be appropriate to draw any inference in this case from the failure of any party to call a particular witness. It was equally open to the Claimant to call this witness if he so wished or to apply to the Court for a Witness Summons requiring his attendance. The calling of witnesses is a matter entirely for the parties and the Court must decide the case on the basis of the evidence proffered and it cannot speculate on what evidence a witness might have given if called.
The Court has considered all of the evidence adduced and has observed the demeanour of the witnesses giving their evidence. The Court has also proceeded on the basis that the Respondent bears the onus of proving compliance with the various provisions of the Act alleged to have been breached.
The Court has come to the conclusion that the evidence adduced by the witnesses for the Respondent is preferable over that of the Claimant. The Court believes that the evidence given in relation to the start and finishing times of work and the taking of breaks given by the witness for the Respondents is substantially correct and reflects the reality of what occurred at the material time. In these circumstances the Court has reached the conclusion that the Complainant did receive breaks in accordance with the Act and his normal working hours did not exceed what is permissible under the Act. In these circumstances the Respondent is entitled to succeed in his appeal
Determination:
For the reasons set out above the Court is satisfied that the appeal herein should be allowed and the Decision of the Rights Commissioner should be set aside.
Signed on behalf of the Labour Court
Kevin Duffy
10th December, 2008______________________
JMcCChairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.