FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : CARLTON AIRPORT HOTEL - AND - MARTIN PATTERSON (REPRESENTED BY BERNARD BYRNE) DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioner's Decision R-048851-Wt-06/Jt
BACKGROUND:
2. This case concerns an appeal by the worker of Rights Commissioner's Decision R-048851-Wt-06/Jt. The issue in dispute concerns a worker who claims not to have received the appropriate rest break on 8th December, 2006. The worker claims that he was on his break when asked to carry out a task by management shortly after 6.30pm.
He claims to have politely told management that he was on a break and would complete the task afterwards. Management's position is that the worker was asked to carry out the task, which would take approximately 15 minutes, and to resume his break afterwards. The worker was employed as a Shuttle Bus Driver for the Carlton Airport Hotel and was required to pick up clients from the airport when the issue arose. It is alleged that the worker did perform the task and resigned after an exchange with management on his return to the Hotel later that evening.
The dispute was referred to Rights Commissioner for investigation. His Decision issued on 12th June 2007 and did not find in favour of the worker. The worker subsequently appeald 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 9th July 2008.
WORKER'S ARGUMENTS:
3 1 It was unreasonable of management to request the worker to interrupt his meal break and go to pick up its clients. It would have been more appropriate for the worker to finish his break and then carry out Management's request.
COMPANY'S ARGUMENTS:
4 1 The worker was asked politely to finish his break after carrying out the task at hand. The task would have taken approximately 15 minutes in total. Management had a responsibility to have its guests collected as soon as practical and tried to explain this to the worker.
DETERMINATION:
This claim came before the Court by way of an appeal from the Decision of a Rights Commissioner given under the Organisation of Working Time Act 1997 (the Act). The material facts of this case are not in dispute and can be summarised as follows: -
The Claimant, Mr Martin Patterson, was employed by the Respondent, Carlton Airport Hotel, as a Shuttle Bus Driver / Porter from 13th June 2006 until 8th December 2006, when his employment terminated.
On 8th December the Claimant commenced working at 3p.m. At approximately 6.30 p.m. the Claimant took a meal break. While in the course of this break the Claimant was approached by his manager who instructed him to take the bus to the airport and collect some hotel guests. The Claimant objected but the manger insisted that the Claimant comply with the instruction.
The Claimant was told that he could have a break after he had delivered the guests to the hotel. An altercation ensued between the Claimant and the manager but the Claimant did terminate his break and collect the passengers as directed. On his return to the hotel further incidents occurred which resulted in the termination of the Claimant’s employment. The Claimant claims that he was dismissed. The Respondent claims that the Claimant resigned.
The substance of the Claimant’s case is that the Respondent contravened the Act in instructing him to terminate his meal break and that his dismissal flowed from his objection to that instruction.
Conclusions of the Court
This case came before the Court under the Act and must be decided solely having regard to the provisions of the Act. The relevant provisions are to be found at Sections 12(1) and 26 of the Act. Section 12(1) provides that an employer shall not require an employee to work for a period of more than four hours and thirty minutes without allowing him or her to take a break of at least fifteen minutes.
In this case the Claimant commenced work on the day in question at 3p.m. He took his break at 6.30p.m. Under the Act he was not entitled to a break until 7.30 p.m. The Respondent told that Claimant that he could take his break after he had collected the guests from the airport. It was not suggested that the Claimant would have been unable to take his break before 7.30 p.m., at which time he would have been at work for four hours and thirty minutes. Accordingly, the Respondent did not contravene s.12 (1) of the Act in directing the Claimant to terminate his break and take it on his return from the airport.
Section 26 of the act provides as follows: -
- 26.—(1) An employer shall not penalise an employee for having in good faith opposed by lawful means an act which is unlawful under this Act.
(2) If a penalisation of an employee, in contravention of subsection (1), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts, 1977 to 1993, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts.
This Section could only avail the Claimant if it were established that the termination of his break constituted an unlawful act by the Respondent. The Court has found that the direction given to the Claimant in that regard was not unlawful under the Act. Consequently s.26 of the Act has no application in this case.
Determination
For the reasons set out herein the Court is satisfied that the Claimant's complaint under the Act is not well-founded. Accordingly his appeal is disallowed and the decision of the Rights Commissioner is upheld.
Signed on behalf of the Labour Court
Kevin Duffy
30th July, 2008______________________
AHChairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.