FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : SMART SCAFFOLDING LIMITED (REPRESENTED BY BURKE HAND & CO SOLICITORS) - AND - IGOR BUNYAKEVYCH (REPRESENTED BY PC MOORE & CO) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Grier Worker Member: Mr O'Neill |
1. Appeal of Rights Commissioner's Decision r-052300-wt-07/JW.
BACKGROUND:
2. This case concerns an appeal by the Complainant who is a Ukrainian citizen, of Rights Commissioner's Decision r-052300-wt-07/JW. The dispute concerns alleged breaches of Sections 12, 15 and 17 of the Organisation of Working Time Act, 1997 (the Act) concerning break periods, maximum weekly working hours and notification of additional hours respectively.
The issue was referred to a Rights Commissioner for investigation. His decision issued on the 2nd April, 2008 as follows:-
"I find that the complaint is not well founded and I find in favour of the employer."
The employee appealed the Rights Commissioner’s decision to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997 on the 29th April, 2008. The Court heard the appeal on the 16th October, 2008, the earliest date suitable to the parties.The following is the Court's Determination:
DETERMINATION:
The Complainantbrought proceedings before a Rights Commissioner claiming infringements of Section 12, 15 and 17 of the Organisation of Working Time Act 1997.
The Rights Commissioner rejected all claims. The Complainant appealed the Rights Commissioner’s decision.
Mr. Grogan, Solicitor on behalf of the Complainant, claimed that the employer had breached the Act, by not affording him his entitlement to the statutory break periods in contravention of Section 12 and by requiring him to work in excess of the maximum weekly prescribed by Section 15 of the Act. He further complained that the employer had not notified the Complainant with at least 24 hours notice prior to working “additional hours”, in breach of Section 17 of the Act.
The Court has considered the oral and written submissions of both parties together with the witness testimony. The Court took evidence under oath from the Complainant, Mr. Igor Bunyakevych and from proprietors of the Company - Ms. Lorraine Teevan and Mr. Ger�id Teevan.
The Complainant was employed with the Respondent from 16th October, 2006 until 3rd February, 2007.
Claim under Section 12: break periods
The Court is satisfied that the Complainant received his full entitlement to breaks under Section 12 when required to work from 8.00am to 5.00pm, as it is accepted by both parties that during those hours he received at least one 30 minute break at 1.00pm. The Respondent stated that the Complainant also received a 30-minute break at 10.00am.
If the Complainant was required to work until 6.30pm, the Act provides that he should receive a further break period of 15 minutes or a 30-minute break if he worked until 8.00pm.
In accordance with Section 25(4) of the Act, the onus of proving compliance with the relevant statutory provisions rests with the Respondent. The Court has carefully considered the evidence adduced by both parties and has examined both the Respondent’s record of hours worked by the Complainant and the Complainant’s own hand written notes, which he stated he took on a daily basis during his employment. The latter information records that he worked beyond 5.00pm on one occasion only i.e. on 5th December, 2008, when he worked up to 7.00pm.
Accordingly, the Court is satisfied that the relevant provisions of the Act were complied with in respect of the Complainant, except for this one occasion.
Claim under section 15: maximum weekly working hours
Section 15 prescribes that an employer shall not permit an employee to work in excess of 48 hours on average over a reference period of 4 months. The Court has examined the Complainant’s own records of the hours he recorded as working hours, from 16th October 2006 until 3rd February 2007. While the Court is satisfied that these records take account of the time he spent traveling to and from work, being transported by his employer/colleague, however in any event the results indicate an average43.56 hours per week. Therefore, the Court is satisfied that the Respondent did not breach Section 15 of the Act.
Claim under Section 17: Notification of Additional Hours
Section 17 of the Act provides as follows: -
(2)If the hours for which an employee is required to work for his or her employer in a week include such hours as the employer may from time to time decide (in this subsection referred to as "additional hours") the employer shall notify the employee, subject to subsection (3) at least 24 hours before the first day or, as the case may be, the day in that week on which he or she proposes to require the employee to work all or as the case may be, any of the additional hours, of the times at which the employee will be required to start and finish working the additional hours on each day, or as the case may be, the day or days concerned, of that week.
The Court is satisfied that the Complainant’s normal hours of work were 8.00am to 5.00pm. Both the Respondent’s and the Complainant’s records show that on a number of occasions he finished earlier, however, the Complainant’s records indicate that on one occasion - 5th December 2006, he was required to work until 7.00pm. Whereas, the Respondent’s records show that he worked until 5.00pm on that day. The Court is not satisfied that this one disputed occasion is sufficient evidence to establish that the Respondent breached Section 12 of the Act.
The Respondent told the Court that on occasions due to a shortage of work that the Complainant was not required on certain days, however, rather than reduce his earnings in such weeks, if it was available he worked a number of hours on Saturdays mornings. On such occasions the Complainant was notified in advance.
The Court is not satisfied that the possible occurrence of one occasion of “additional hours” worked in the working life of the Complainant with this Respondent comes within the meaning of “from time to time” as stipulated by the Act. Therefore, the Court does not find that the Respondent was in breach of Section 17 of the Act.
DETERMINATION
The Court finds that the Respondent was not in breach of Section 12, 15 or Section 17 of the Organisation of Working Time Act 1997. The Rights Commissioner 's decision is upheld accordingly.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
25th November, 2008______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.