FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : ERNESIDE CONSTRUCTION LTD (REPRESENTED BY MORGAN MCMANUS) - AND - JANIS MILLERS (REPRESENTED BY PC MOORE AND CO) DIVISION : Chairman: Mr McGee Employer Member: Mr Doherty Worker Member: Ms Ni Mhurchu |
1. Appeal of Rights Commissioner's Recommendation R-048814-Wt-06/Jt
BACKGROUND:
2. This case concerns an appeal by the employer of Rights Commissioners Recommendation R-048814-Wt-06/Jt. The case concerns a dispute between Erneside Construction Limited and the worker in relation to alleged breaches of the Oganisation of Working Time Act, 1997.
The worker is claiming that he worked in excess of 48 hours per week, did not recceive the correct annual leave entitlements, Public Holiday entitlements and was not given the appropriate breaks in compliance with the Act.
The employer accepts that there were certain breaches of the Act in relation to hours of work, Annual Leave and Public Holidayentitlements but not in relation to breaks. It is claimed that breaks occurred at 10am and 1pm each day and that the site actually closed to facilitate the breaks.
The dispute was referred to a Rights Commissioner for investigation and Recommendation. His recommendation issued on 26th February, 2008 and found the complaint to be well founded. The worker was awarded €2,474.79 in relation to holiday pay and an additional €7,000 in compensation for the other breaches of the Act.
On the 10th March, 2008 the employer appealed the Recommendation of the Rights Commissioner in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 11th June, 2008.
WORKER'S ARGUMENTS:
3 1 The correct entitlements were not provided in relation to Annual Leave entitlements, Public Holiday entitlements, Rest Breaks and sufficient notice of the requirement to work overtime. These are clear breaches of the Act and unacceptable.
COMPANY'S ARGUMENTS:
4 1 The worker was provided with a contract of employment which specifically set down the starting and finishing times of work each day. The employer at all times provided the correct entitlements in relation to Annual Leave.
2 The worker was paid for the day on the relevant Public Holidays. He did not request a paid day off on the days in question.
3 The appropriate breaks were given to the worker as the site closed each day at break times.
DETERMINATION:
Having considered the submissions made by the parties, and having heard evidence from the claimant and the Managing Director of the company on the question of breaks, the Court has established that-
- the breaches of the Act in relation to holidays and public holidays are admitted.
- some breaches occurred in regard to working excessive hours.
- there is agreement between the parties that there were breaks at 10AM and 1PM each day.
- records were not kept in the manner prescribed.
The Court accordingly varies the monetary amounts in the decision of the Rights Commissioner to provide for €2474.79 in holiday pay and
€4000.00 in compensation, making a total award of €6474.79
The Court so determines.
Signed on behalf of the Labour Court
Raymond McGee
27th June 2008______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.