FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : MCHALE PLANT HIRE LTD (REPRESENTED BY ESA CONSULTANTS) - AND - MARIUS CESNA (REPRESENTED BY P.C. MOORE & CO. SOLICITORS) DIVISION : Chairman: Mr McGee Employer Member: Mr Grier Worker Member: Ms Ni Mhurchu |
1. Appealing against a Rights Commissioner's Decision r-055741-WT-07/DI.
BACKGROUND:
2. This case concerns an appeal by the Worker of Rights Commissioner's Decisionr-055741-WT-07/DI.The Worker was employed by the Company from 21st May, 2004 to 9th February, 2007.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 3rd March, 2008. The Rights Commissioner's Decision was as follows:
- "Evidence was given that the claimant’s normal working hours were 7:30am to 5:30pm each day. I find the claimant’s complaint that he was not provided with 24 hours notice each time he was required to work overtime to be well-founded, insofar as his complaint relates to overtime that fell outside his normal working week.
As the claimant was fully aware of the requirement to work 7.30am to 5:30pm each day, I find his complaint of not being provided with 24 hours notice of working the 6 hours overtime that resulting from working these hours, not to be well-founded.
The respondent accepted that the claimant worked an average of more than 48 hours each week and maintained that the excess hours were as a result of demands from the claimant. Pressure from employees is not a valid reason for an employer being in breach of Section 15 of the Act. The maximum weekly working hours are set for health and safety reasons and it is the responsibility of an employer to ensure compliance with this provision. I find the claimant’s complaint regarding the respondent being in breach of Section 15 to be well founded.
No records were provided to show compliance with Section 12 of the Act.
Having fully considered submissions made by the parties I order the respondent to pay to the claimant the sum of €2500 in compensation for being in breach of Sections 12, 15 and 17 of the Organisation of Working Time Act, 1997."
The Company appealed this Decision to the Labour Court on 24th June, 2007, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 4th November, 2008.- "Evidence was given that the claimant’s normal working hours were 7:30am to 5:30pm each day. I find the claimant’s complaint that he was not provided with 24 hours notice each time he was required to work overtime to be well-founded, insofar as his complaint relates to overtime that fell outside his normal working week.
3. 1. The Worker was consistently required to work in excess of 48 hours per week.The Company has not maintained and provided records to show that it was in compliance with the relevant statutory provisions regarding the Worker's working week.
2.The Worker was not provided with all his statutory breaks. The Company has not maintained and provided records to show that it was in compliance with the relevant statutory provisions regarding rest breaks.
3.The Worker was not provided with 24 hours' notice each time he was required to work overtime.
COMPANY'S ARGUMENTS:
4. 1. The Worker insisted on working in excess of 48 hours per week or else he would have walked off the site.The Worker did not work as many hours in excess of 48 hours per week as he claims.
2. The Worker worked the same hours every week so he was fully aware that he was on notice to work overtime each week.
3.The Worker was provided with all his statutory breaks.
DETERMINATION:
The Court has considered the oral and written submissions of the parties.
An issue was raised regarding the jurisdiction of the Court in that it was alleged that the case was not referred to the Rights Commissioner Service within the statutory time limit. This was withdrawn at the Court hearing with an acceptance by the Respondent employer that the Claimant had referred the case in time to the Service.
It was also admitted at the hearing by the Respondent employer that records had not been kept in the prescribed form and that the Claimant had not, on occasions, been informed 24 hours before being asked to work overtime falling outside his normal working week.
It was further admitted that the Claimant worked in excess of 48 hours per week. The Respondent alleged that this did not always happen and produced printouts which indicated a level of compliance with the 48 hour maximum, depending on the reference period chosen. Records were not, however, kept in the prescribed form.
The Claimant said he sometimes, but not always, got afternoon breaks. The Respondent concurred with this, and there were again no records kept in the prescribed form.
In defending the appeal, the Claimant's representatives requested an increased level of compensation, using the guidelines indicated in the ECJ case of"Von Colson and Kamann v Land Nordrhein - Westfalen [1984] E.C.R. 1891.
While this established precedent provides for a level of compensation, which should be effective, compensating both for economic loss and providing a deterrent against future infractions, it also indicates that such compensation should also be both proportional and dissuasive.
The Court, in all the circumstances, upholds the Decision of the Rights Commissioner in full and so determines.
Signed on behalf of the Labour Court
Raymond McGee
25th November, 2008.______________________
JMcC.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.