FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : PATRICK CALLAGHAN TRADING AS CALLBRUNO (REPRESENTED BY PURDY LEGAL SOLICITORS) - AND - EUGENIJUIS LEITA (REPRESENTED BY PC MOORE & CO SOLICITORS) DIVISION : Chairman: Mr McGee Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal of Rights Commissioner's Decision No: r-051559-wt-RG.
BACKGROUND:
2. This case concerns an appeal by the Company of Rights Commissioner's Decision No: r-051559-wt-RG.
The issue concerns an employee who claimed that he did not take adequate rest breaks while in the employment of the Company and allegedly worked hours in excess of the maximum allowed for night workers.
The Company's position is that it made every effort to ensure that the Worker took the appropriate length of lunch break but that the worker continually returned to work early or took his break late. The Worker's position is that the onus was on the employer to ensure that adequate rest breaks were taken and it was claimed that the Company also failed to keep records of rest breaks.
The matter was referred to a Rights Commissioner for investigation for investigation. Her decision issued on 19th August, 2008 and found that the complaints in relation to breaches of Section 12 and 16 of the Organisation of Working Time Act,1997 were well-founded. The Rights Commissioner awarded €3,000 compensation to the Worker.
On the 18th September, 2008 the Employer appealed the Decision of the Rights Commissioner in accordance with Section 28(1) of the Act. A Labour Court hearing took place on 14th January, 2009.
UNION'S ARGUMENTS:
3 1 The Employer did not fulfill its obligations in relation to the employee taking rest breaks. The Organisation of Working Time Act, 1997 requires the Employer to ensure that a worker takes a 30-minute lunch break each day.
2 The Company also failed to comply with Section 16 of the Organisation of Working Time Act in that the Worker was employed for hours in excess of the allowed average over the relevant reference period.
COMPANY'S ARGUMENTS
4 1 The Company made every effort to ensure that the Worker took adequate rest breaks as set out in the Organisation of Working Time Act, 1997. The worker did take breaks but frequently returned to work before the expiry of 30 minutes.
2 The Company attempted to comply with all relevant legislation on the taking of breaks and average working hours. It sought advice from the appropriate Government Department and obtained publications on its obligations under the Act. Any breaches that occurred were purely accidental and unintentional
DETERMINATION:
In regard to a complaint made under Section 12 of the Act, it was admitted that breaches of this Section had occurred in regard to the Claimant taking less than the allotted time for breaks.
The Company contention is that, while every effort was made to ensure that breaks were taken and that these breaks were of the prescribed duration, the Claimant insisted on returning to work early or on taking his breaks late.
The Claimant's representative argued that the onus was on the Employer to ensure compliance with the Act. In the view of the Court, any breaches which occurred, were of an essentially minor nature.
Regarding Section 16 of the Act, even if the Employer misinterpreted the legislation regarding the working hours of night workers, the Court does not necessarily accept that such a breach took place, the Company relied on four separate interpretations of the legislation, all of which spring from the Department of Enterprise Trade & Employment, which is the sponsoring Department for this legislation. In the view of the Court, there was no intent to breach the Act; in fact, the Company was genuinely attempting to comply with the legislation.
The breaches of the legislation which occurred were minor and technical in nature, yet there was an admitted breach of Section 12 and, at the time of the breaches, it would not appear that records were kept in the prescribed form. The Court varies the Rights Commissioner's Decision to allow for a payment of €500 in compensation and so determines.
Signed on behalf of the Labour Court
Raymond McGee
2nd February 2009______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.