FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : BRYAN CULLEN T/A CULLEN LANDSCAPE DESIGN (REPRESENTED BY MANAGEMENT SUPPORT SERVICES (IRL.) LTD) - AND - MARIUSZ WITKO DIVISION : Chairman: Mr Hayes Employer Member: Ms Doyle Worker Member: Mr Nash |
1. Appeal against Rights Commissioner's Decision R-084988-WT-09/EH.
BACKGROUND:
2. The Worker concerned was employed by Bryan Cullen trading as Cullen Landscape Design from 16th. January, 2006 until his employment ceased on 2nd, July 2009.
The Worker claims that he worked from 8.00 a.m. to 6.00 p.m Monday to Friday and usually on Saturdays from 8.00 a.m. to 1.00 p.m. or 3.00 p.m. for which he was paid a normal hourly rate.
The case before the Court is a claim by the Worker for payment for excess hours worked.
The Company admitted it had not kept records of the hours worked by the Worker.
The claim was referred to a Rights Commissioner for investigation. As the Worker did not attend the case failed for want of prosecution.
The Worker appealed the Rights Commissioner's decision to the Labour Court on the 20th April 2010, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997, on the basis that he had not been informed that the hearing was taking place. The Court heard the appeal on the 3rd August 2010, the earliest date suitable to the parties.
WORKER'S ARGUMENTS:
3. 1. The Worker maintains that he did work from 8.00 a m to 6.00 p.m. Monday to Friday regardless of the season. He also maintains that he worked most Saturdays up to July 2008.
COMPANY'S ARGUMENTS:
4. 1. The Company maintains that it averaged the working hours out over 6 months as the work is seasonal and that the Worker averaged 47.5 hours per week.
2. The Company contends that the Worker did not work any Saturdays from July 2008 onwards.
DETERMINATION:
The case comes before the Court pursuant to Section 28 (1) of the Organisation of Working Time Act 1977 (the Act) by way of an appeal of Rights Commissioner Decision r-084988-WT-09/EH issued on 16th April 2010.
Background:
Mr Witko (the Complainant) commenced employment with Bryan Cullen t/a Bryan Cullen Landscape Design (the Respondent) on 16 January 2006. He worked as a general labourer assisting Mr Cullen. He was paid €500 per week with €100 euro expenses. Mr Witko’s employment was terminated on 2 July 2009.
The Complainant submitted a complaint under Section 15 (1) of the Act.
The Law:
The Organisation of Working Time Act 1997 provides for the implementation of Directive 93/104/EC of 23rd November 1993 of the Council of the European Communities concerning certain aspects of the organisation of working time.
Article 1 of Directive 93/104/EC lays down minimum safety and health requirements for the organisation of working time.
The Regulation, through the Act provides for the regulation of “minimum periods of daily rest, weekly rest and annual leave, to breaks and maximum weekly working time and certain aspects of night work, shift work and patterns of work”.
The provisions in relation to the maximum working week set out in the Directive are transposed into Irish law through Section 15 of the Act, the relevant section of which provides
15.—(1) An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period”) that does not exceed—
a) 4 months, or
b) 6 months—
- (i) in the case of an employee employed in an activity referred to in paragraph 2, point 2.1. of Article 17 of the Council Directive, or
(ii) where due to any matter referred to insection 5, it would not be practicable (if a reference period not exceeding 4 months were to apply in relation to the employee) for the employer to comply with this subsection,
or
- (i) in the case of an employee employed in an activity referred to in paragraph 2, point 2.1. of Article 17 of the Council Directive, or
Subsection (2) relates to transitional provisions that are no longer relevant
Subsection (3) says that
(3) The days or months comprising a reference period shall, subject to subsection (4), be consecutive days or months.
Subsection (4) sets out absences from work that are not reckonable for the purposes of establishing a reference period
Subsection (5) provides
5) Where an employee is employed in an activity (including an activity referred to in subsection (1) (b) (i))—
(a) the weekly working hours of which vary on a seasonal basis, or(b) as respects which it would not be practicable for the employer concerned to comply with subsection (1) (if a reference period not exceeding 4 or 6 months, as the case may be, were to apply in relation to the employee) because of considerations of a technical nature or related to the conditions under which the work concerned is organised or otherwise of an objective nature,
then a collective agreement that for the time being has effect in relation to the employee and which stands approved of by the Labour Court undersection 24may specify, for the purposes of subsection (1) (c), a length of time in relation to the employee of more than 4 or 6 months, as the case may be (but not more than 12 months).
Section 25 of the Act also makes provision for the keeping of records by employers of hours worked by an employee
25.—(1) An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this Act are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making.
Subsection (2) provides for the Minister, by regulation, to exempt from the application of the subsection (1) any specified class or classes of employer
- (2) The Minister may by regulations exempt from the application of subsection (1) any specified class or classes of employer and regulations under this subsection may provide that any such exemption shall not have effect save to the extent that specified conditions are complied with.
Subsection makes it an offence for an employer to fail to comply with subsection (1) without reasonable cause.
(3) An employer who, without reasonable cause, fails to comply with subsection (1) shall be guilty of an offence.
- (4) Without prejudice to subsection (3), where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.
Position of the Parties:
The Complainant submitted a complaint under Section 15 of the Act to the effect that he was required to work in excess of the 48- hour statutory maximum permitted.
The Respondent rejected the claim and submitted that his was a seasonal business and that the hours of work averaged over either a four or six month period did not exceed 48 hours per week.
The Complainant and the Respondent gave conflicting evidence to the Court. The Complainant said he worked from 8:00 A.M. to 6:00 P.M. Monday to Friday of each week with breaks that totalled 45 minutes per day. In addition he said he normally worked on Saturday from 8:00 A.M. until 1:00 P.M. and occasionally he did not finish work until 3:00 P.M. He said he continued to work on Saturday until he was dismissed from his employment in July 2009.
The Respondent (Represented by Mr John Barry of Management Support Services (Irl.) Ltd. gave evidence to the effect that the Respondent normally worked from 8:00 A.M. until 6:00 P.M. from Monday to Friday with breaks of one hour and fifteen minutes per day. He said in 2007 and 2008 he normally worked on Saturday from 8:00 A. M. until 1:00 P.M. during the summer season. He said the working day during the winter season was shorter due to reduced daylight hours. He said that they occasionally worked on Saturday during the winter and that as a result the working week was considerably less than 48 hours. He said that during inclement weather the Complainant was sent home with pay. He further said that during 2009 business was very slack. He said his company had very little work and that consequently there was no requirement for Saturday work that year.
Mr Barry submitted on behalf of the Respondent that the business was seasonal in nature and consequently the relevant reference period was 6 months as set out in Section 15 (5) of the Act. He said that any calculation of total weekly time worked averaged over a six month period would not amount to more than 48 hours whether or not Saturday working was taking place. He further submitted that due to inclement weather the Complainant had been afforded a considerable amount of time off which further reduced the weekly average hours worked.
The company maintained no records of attendance at work or of hours worked as required by Section 15 of the Act.
Findings of the Court
The Court is faced with a conflict of evidence. The Complainant gave evidence that he regularly worked in excess of an average of 48 per week including regular Saturday work. The Respondent contradicted this in virtually every respect.
However Section 25 (4) of the Act providesthe onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.
No evidence was presented to the Court that could discharge the onus of proving compliance with the provisions of the Act.
As the Respondent has failed to discharge the onus placed on him by the Section 25 (4) of the Act the Court must uphold the appeal and find for the Complainant.
Compensation Award:
In considering an award of compensation the European Court of Justice has inSabine von Colson and Elisabeth Kamann v Land Nordrhein-Westfalenset out the principles to be applied in determining compensation for breach of Community Law.
- “…THEN IN ORDER TO ENSURE THAT IT IS EFFECTIVE AND THAT IT HAS A DETERRENT EFFECT , THAT COMPENSATION MUST IN ANY EVENT BE ADEQUATE IN RELATION TO THE DAMAGE SUSTAINED AND MUST THEREFORE AMOUNT TO MORE THAN PURELY NOMINAL COMPENSATION SUCH AS , FOR EXAMPLE , THE REIMBURSEMENT ONLY OF THE EXPENSES INCURRED IN CONNECTION WITH THE APPLICATION .”
The ECJ therefore requires that compensation for breaches of Community law must be effective, have a deterrent effect and in addition be adequate in relation to the damage sustained.
In all the circumstances of this case the Court awards compensation of €5,000 to the Complainant for the breaches of Section 15 (1) of the Act.
Determination:
The decision of the Rights Commissioner is set aside, the appeal is upheld and the Complainant is awarded the sum of €5,000 compensation for the breaches of Section 15 (1) of the Act.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
11th August, 2010______________________
MG.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.