FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : SCHMIDT INDUSTRIES INTERNATIONAL LIMITED (REPRESENTED BY MORAN & RYAN SOLICITORS) - AND - DMITRIUS ANISIMOVS (REPRESENTED BY P.C. MOORE & CO) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Grier Worker Member: Mr O'Neill |
1. Appeal Of A Rights Commissioner's Decision R-059128-Wt-07/EH
BACKGROUND:
2. The case before the Court is an appeal on behalf of the worker against the Rights Commissioner's Decision R-059128-wt-07/EH. It is the worker's claim that the Company breached the Organisation of Working Time Act, 1997 regarding break periods, working excessive hours and receiving no notification of overtime. The worker claimed that he received two breaks during the day, the first at 10:00am lasting 5 to 7 minutes, and the second at 1:00pm lasting 35 minutes. No break was given in the afternoon. The worker stated that he regularly worked in excess of 48 hours per week and was not notified in advance of any overtime required. The company contend that the worker did receive his break entitlements of 15 minutes at 10:00am, 35 minutes at 1:00pm and 15 minutes at 3:00pm because the production line was shut down at these times. Records of all the hours worked by employees are kept by the Company. These records show that the worker concerned did not work excessive hours under the terms of the Act. Any overtime was on a voluntary basis and notification was given on the Friday of the week previous to the week in which the overtime is scheduled.
The dispute was referred to Rights Commissioner for investigation. His Decision issued on 29th May, 2008. The worker subsequently 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 September, 2008.
UNION'S ARGUMENTS:
3. 1 The Company put in place a procedure whereby the employees clock in and out for break periods. This procedure has been disregarded by the company and no action has been taken to enforce this contractual obligation to maintain records.
2 The worker regularly worked in excess of 48 hours per week. There is an obligation on an employer to ensure that workers do not work in excess of the 48 hour rule.
3 Overtime was not voluntary. The worker was told he must work overtime. Notification of overtime was given on the morning of the day the overtime was required, the worker did not receive notification at least 24 hours before the start of the overtime. The hours to be worked should also have been identified in advance.
COMPANY'S ARGUMENTS:
4. 1 The production line was shut down completely during the designated break times therefore the worker was obliged to take a break. All employees are paid in full during their breaks and because of this a practice of not clocking out for breaks has developed in the Company.
2 The worker's standard working week was 37.5 hours. He was paid for 40 hours to include his breaks. Overtime was offered to employees. There was no obligation to work overtime. Records of all overtime worked by the worker concerned were kept by the Company.
3 Notification of any overtime was given in advance by the Company. At the end of each week employees were informed that overtime would be available the following week. Rosters were published on the Monday of the overtime week setting out the hours and who was working them.
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 upheld the claims under section 15 and 17 and awarded €600 compensation. The Complainant appealed the Rights Commissioner’s decision, the employer did not appeal.
Mr. Leonard, B.L 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 given the Complainant 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. Dmitrius Anisimovs (with the assistance of an interpreter, Ms. Natalia Egan) and from Mr. Mark O’Donoghue, Supervisor and Mr. Basram Halimi ex-employee of the Company.
The Complainant was employed with the Respondent from 5th March 2001 until 8th June 2007, when he was made redundant.
Claim under Section 12: break periods
The Court is satisfied that the Complainant received his full entitlement to breaks when required to work from 8.00am to 4.00pm, as it is accepted that during those hours he received breaks including a 35 minute lunch break at 1.00pm. Mr. Anisimovs told the Court that he did not receive any breaks in the afternoon or prior to working after 6.30pm. He explained that his morning break was for a period of 8 minutes, due to conveyor belt operations.
When the Complainant was required to work beyond 4.00pm, the Act provides that he should receive a further break period of 15 minutes if he worked until 6.30 or a 30-minute break if he worked until 8.00pm. The Complainant in his evidence stated that he did not receive any breaks after 1.00pm; this was denied by the Respondent.
An ex-employee, Mr. Halimi gave evidence that when no work was scheduled beyond 4.00pm there was no afternoon break, however, where such work was scheduled there was a 15-minute break at 3.00pm and a 35-minute break at 5.30pm. This evidence was supported by Company’s Supervisor, Mr. O’Donghue.
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. In so doing the Court accepts that the Complainant was under the impression that he was only allowed a break of 8 minutes for his morning break and not 15. However, the Supervisor and ex-employee impressed the Court as reliable witnesses and their account of what occurred at the material time is accepted as being generally correct.Therefore,the Court is satisfied from the evidence adduced that where work was scheduled beyond 6.30pm, workers including the Complainant, were given a break of 35 minutes.
Accordingly, the Court is satisfied that the Respondent has discharged the burden of proving that the relevant provisions of the Act were complied with in respect of the Complainant.
Claim under section 15: maximum weekly working hours
The Respondent submitted that as the complaint was made to the Rights Commissioner on 16th November 2007, the Complainant’s claim with regard to hours worked during the reference period prior to 17th March 2007 was statute bared under Section 27(4) of the Act.
The Court notes that no claim was made to the Right Commissioner under section 27(5) of the Act for an extension of the time limit prescribed by Section 27(4) of the Act. Section 27(4) of the Act allows for complaints to be presented within 6 months of the alleged contravention. Therefore, the Court could not deal with complaints pertaining to contraventions of the Act alleged to have occurred prior to 17th March, 2007. However, as 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, then the Court will examine the hours worked from 9th February to 8th June 2007 – his date of termination.
Having examined the details supplied of hours worked for this period the Court calculates that the Complainant was required to work on average44.64 hours per week. Therefore, the Court finds that the Respondent was not in breach of Section 15 of the Act.
Claim under section 17: Notification of Additional Hours
The Court is satisfied that hours of work after 4.00pm were additional to the Complainant’s basic contracted hours and consequently, there was an obligation on the Respondent to notify him of such hours at least 24 hours in advance. The Complainant gave evidence that he received notification on the morning of each day that he was required to work overtime.
The Respondent and their witnesses gave evidence that employees were notified on Fridays of a requirement to work additional hours for the following week. The Court has not been able to reconcile the conflict of evidence given and the Respondent produced no evidence to substantiate its position, therefore the Court finds that there was a breach of section 17 of the Act.
DETERMINATION
The Court does not find in favour of the Complainant’s allegation that the Respondent was in breach of section 12 of the Act. The Court varies the Rights Commissioner's decision by finding that the Respondent did not breach section 15 of the Act. However, the Court finds that the Respondent breached section 17 and concurs with the Rights Commissioner 's decision to award the sum of €600.00.
The Court determines that the Respondent must pay the sum of €600.00 in respect of the Complainant’s claim under the Organisation of Working Time Act 1997.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
3rd October, 2008______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to David P Noonan, Court Secretary.