FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : TRINITY STONE CONSTRUCTION (REPRESENTED BY BRANIGAN AND MATHEWS SOLICITORS) - AND - JANIS KAZINIEKS (REPRESENTED BY PC MOORE AND CO SOLICITORS) DIVISION : Chairman: Mr McGee Employer Member: Mr Grier Worker Member: Ms Ni Mhurchu |
1. Appeal of a Rights Commissioner's Decision r-057615-wt-07/EH
BACKGROUND:
2. This case concerns an appeal by the worker of Rights Commissioners Decision r-057615-wt-07/EH. The issue concerns an alleged breach of the Organisation of Working Time Act, 1997 (OWT) and the worker's assertions that he was not given the required notice of the requirement to work overtime in compliance with Section 17 of the Act.
The Employer's position is that the worker was asked on Friday afternoons if he wished to work overtime on Saturdays but it was not compulsory overtime. It is further contended that sometimes it would be necessary to work on Saturdays as part of the normal working week on the basis of inclement weather earlier in the week or other circumstances that would have delayed progress on site.
The dispute was referred to a Rights Commissioner for investigation. He issued his Decision on 25th March 2008 and awarded the worker €150 compensation. He outlined that the worker had known his starting and finishing times and had not been coerced into working overtime. The award was on the basis of a technical breach of the Act.
On the 9th April 2008, the worker 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 24th June 2008.
UNION'S ARGUMENTS:
3 1 The worker was in the employment of the Company from June 2006 to August 2007. During this period he was required to work at least every second Saturday and was only paid a flat rate of pay.
2 The Employer failed to keep records in relation to giving the worker the required notice of the requirement to work overtime. This is a clear breach of the Act and is unacceptable. The worker should be compensated on the basis of the employers failure to comply with the provisions of the Act.
EMPLOYER'S ARGUMENTS:
4 1 The worker was only employed from June 07 until August 07 and was offered Saturday work at times during that period. On ocassion the Saturday work was necessary to make up the guaranteed 39 hour week.
2 From June 2006 to June 2007 the worker was not in the employment of the Company. He had carried out independent maintenance work at the homes of Company representatives but was not exclusively employed by them during this period.
3 There was never a compulsion to work overtime during the 8 weeks of employment. It is accepted by the worker that there was no coercion in relation to weekend work.
DETERMINATION:
Having considered the evidence of both parties and the admitted lack of records and
breach of Section 17(2) of the Act, the Court finds that, in relation to the period of the claimant's direct employment with the respondant, compensation of €400 should be paid. The Court so determines and varies the decision of the Rights Commissioner accordingly.
Signed on behalf of the Labour Court
Raymond McGee
11th July 2008______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.