FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : KELLY BROTHERS (ROADLINES) LIMITED (REPRESENTED BY CONSTRUCTION INDUSTRY FEDERATION) - AND - EVALDAS PAULAVICIUS (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Mr O'Neill |
1. Appealing against a Rights Commissioner's Decision r-051642-wt-07/DI
BACKGROUND:
2. The Claimant worked for the Company as a General Operative intermittently from 5th September 2005 to 22nd December 2006, when he was made redundant. The Claimant is seeking compensation for the Company being in contravention of Sections 11, 12, 15, 17 of the Act and a claim was presented to a Rights Commissioner on 13th April 2007 and was heard on 18th February 2008.
The Employee 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 6th August, 2008. The Court heard the appeal on the 3rd November, 2010, the earliest date suitable to the parties.
EMPLOYEE'S ARGUMENTS:
3. 1. The Claimant did not receive the regulation rest breaks or the required notice of pending overtime. He was also required to work in excess of the 48 hours allowed per week.
2. The onus is on the Employer to keep records of the hours of work in order to ensure compliance with the Act.
COMPANY'S ARGUMENTS:
4. 1. When the Claimant's hours are averaged over a 12 month period as per the Collective Agreement on Working Time, they fall below the 48 hours maximum permitted by legislation.
2. The Claimant completed his own time sheets and was paid in accordance with those time sheets, at no time during his employment did he raise any issues regarding his working hours or breaks.
DETERMINATION:
The Claimant brought a complaint before a Rights Commissioner pursuant to the Organisation of Working Time Act 1997 (the Act) alleging breaches of Sections 11, 12, 15, and 17. The Rights Commissioner found that his complaints under Section 11, 12 and 15 were not well founded. He upheld his complaint under Section 17 and awarded the sum of €500.00 compensation.
The Claimant appealed the Decision of the Rights Commissioner.
Having considered the submissions of both parties the Court is satisfied that there is no evidence to substantiate a claim that the Complainant did not receive his meal break, or that the breaks provided were not taken.
On examination of the records provided the Court is satisfied that there were two occasions when the Complainant did not receive an 11 consecutive hour break in accordance with Section 11 – Tuesday 31st October 2006 and Wednesday 8th November 2006. Accordingly, the Court finds that the employer was in breach of the legislation on those dates.
The records produced indicate that during the relevant period the Complainant worked an average of just under 50 hours per week, therefore, the Court finds that the Respondent was in contravention of Section 15 of the Act.
The Complainant claimed that the Respondent had breached the Act, by not providing him with at least 24 hours notice prior to working “additional hours”, in breach of Section 17 of the Act. The Respondent told the Court that the Complainant had always been notified beforehand whenever he was required to work additional hours, however, due to the requirements of the job it was not always possible to give 24 hours notice, as the weather was the mostly likely deciding factor. The Respondent indicated that the Complainant never raised any difficulties with working the additional hours. However, it did not appeal the Rights Commissioner’s findings on this matter.
Having considered the Complainant's appeal, the Court finds that the Respondent was in breach of Sections 11, 15 and 17 of the Act and determines that the Complainant should be compensated by the payment of an award of €1,000.00. The appeal is allowed and the Rights Commissioner's Decision is overturned.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
23rd November 2010______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.