FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : TRAFFIC MANAGEMENT SERVICES - CARRA CELTIC LTD (REPRESENTED BY PURDY LEGAL SOLICITORS) - AND - LESLIE O'BRIEN DIVISION : Chairman: Mr McGee Employer Member: Mr Grier Worker Member: Ms Ni Mhurchu |
1. Appeal of Rights Commissioner's Decision R-066614-Wt-08/JW.
BACKGROUND:
2. This case concerns an appeal by the employer of Rights Commissioners Decision R-066614-Wt-08/Jw. The issues in dispute concern a worker who referred a complaint to the Rights Commissioner that he worked hours in excess of the weekly maximum allowed under the Organisation of Working Time Act, 1997 and did not receive proper rest breaks. It is also claimed that he was not given adequate notice of the requirement to work overtime.
The Rights Commissioner's Decision issued on the 1st December 2008 and found in favour of the worker. He awarded €4,500 compensation to be paid within six weeks of the Decision.
On the 22nd December, 2008, the employer appealed the Decision to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 25th February, 2009.
WORKER'S ARGUMENTS:
3 1 The worker was not paid the appropriate overtime rate of pay for hours worked in excess of normal working hours.
2 The proper rest breaks were not provided in compliance with the provisions of the Act.
3 Overtime was not optional. Workers were informed that refusing to work additional hours would result in dismissal.
COMPANY'S ARGUMENTS:
4 1 Management have conceded its breaches in relation to record keeping and the outstanding Annual Leave entitlement.
2 There was no basis for an award against the Company in relation to Overtime and the absence of a Contract of Employment as these issues are not covered by the Organisation of Working Time Act, 1997.
3 Management contend that the Organisation of Working Time Act (General Exemptions) Regulations 1998 apply in this case. As a result, no breach of the Act has occurred.
DETERMINATION:
On the basis of the submissions put to the Court by the parties, the Court finds:-
- (a) there was inadequate keeping of records in the prescribed form.
(b) On the balance of probability, and in the absence of full records, the Court is of the view that there was a breach of Section 15 of the Act regarding maximum working hours.
(c) There was admitted breach of Section 19 and the Company has agreed to pay the Claimant in respect of 2½ days' annual leave.
(d) The view of the Court is that there was a breach of Section 20 in regard to pay for annual leave.
The Decision of the Rights Commissioner is varied accordingly.
Signed on behalf of the Labour Court
Raymond McGee
23rd March 2009______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.