FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : MATRIX FOODS LIMITED - AND - SERGEJS KLIMENKOVS (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr Nash |
1. Appeal of a Rights Commissioner's Decision r-063763-wt-08/POB
BACKGROUND:
2. The Worker was employed as a Courtesy Bus Driver from 2nd July, 2007 until his employment was terminated due to gross misconduct on 14th March, 2008.
The case concerns an appeal by the Employer of a Rights Commissioners Decision, the Employer did not attend the original hearing because of circumstances which were furnished to the Court. The Claimant's case was that his employer failed to notify him of additional hours work and that he did not receive his statutory rest breaks.
The Employer 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 27th January, 2009. The Court heard the appeal on the 20th March, 2009, the earliest date suitable to the parties.
WORKER'S ARGUMENTS:
3. 1. Time sheets and working time records were requested from the Companybut to date these have not been furnished to the Worker. The onus therefore rests with the Company to prove that statutory rest breaks were provided.
2. Additional hours of overtime were not notified in advance as per statute to the Worker. Copies of the relevant weekly roster was requested but these have yet to be produced.
COMPANY'S ARGUMENTS:
4. 1. The Worker received a copy of the employee handbook and a written copy of his terms and conditions of employment within one month of the commencement of his employment.
2. The Worker received notification of overtime in accordance with Section 17 (2) of the Organisation of Working Time Act, 1997.
3. The Worker received all his meal / rest breaks in accordance with the Act, in particular a 30 minute break during which the Company provided him with a substantial meal.
DETERMINATION:
A complaint was presented to a Rights Commissioner by the Worker on 14 April 2008 pursuant to Section 27 of the Organisation of Working Time Act, 1997(the Act). He complained that the respondent failed to notify him of additional hours work in accordance with Section 17 and did not receive his statutory rest periods in accordance with Section 12 of the Act.
A Rights Commissioner hearing was held on 4th November 2008. The respondent failed to attend before the Rights Commissioner (an explanation for which was provided to the Court). In these circumstances, the Rights Commissioner found that the complaint was well founded and awarded the worker €1000.00 compensation in respect of breaches of the Act. It is against that decision that the respondent appealed to the Court stating that the worker had received prior notification of overtime hours and had received the appropriate meal breaks in accordance with the provisions of the Act.
Section 17 claim: failure to notify additional hours of work
Having examined the written and oral submissions of both parties and the additional documentation requested by the Court from the employer the Court is satisfied that the worker was provided with a roster before the commencement of each week setting out his hours of work for the following week. The employer told the Court that the worker was expected to work the rostered hours and any additional hours worked were due to unforeseen circumstances beyond the employer’s control, e.g. a driver not reporting for work.
The Court is satisfied that the notification of additional hours in such circumstances comes within the definition of Section 17 (4):
- “A notification to an employee….. shall not prejudice the right of the employer concerned, subject to the provisions of this Act, to require the employee to start or finish work or, as the case may be, to work the additional hours referred to in subsection (2) at times other than those specified in the notification if circumstances, which could not reasonably have been foreseen, arise that justify the employer in requiring the employee to start or finish work, or as the case may be, to work the said additional hours at those times.”
Section 12 claim: failure to provide appropriate daily rest breaks
The employer contended that meal breaks were provided at least in line with the requirements of the Act and produced a memo, which was sent to the drivers indicating when meal breaks should be taken during the various rosters. The employer stated that the worker purchased his meals on the premises and contended that the date and times of meal breaks could be ascertained from receipts issued to him. Copies of receipts were produced for the Court.
The Court notes that receipts were not presented for each and every roster and some days the claimant purchased meals on more than one occasion, consequently it does not accept that the employer has proved, on the balance of probabilities, that the relevant provisions of the Act were complied with. While the evidence shows that the worker clearly received rest breaks it is difficult to determine whether he has received the appropriate daily rest breaks in line with the provisions of Section 12 of the Act.
Accordingly the Court finds that the employer contravened Section 12 and in all the circumstances awards a sum of €300and directs the employer to pay to the worker compensation in that amount.
Accordingly, the Decision of the Rights Commissioner is varied.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
20th April, 2009______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.