FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : REMIGIJUS ZALTAUSKAS T/A UNWANTED CLOTHING (REPRESENTED BY NATALIYA SELEZNOVA) - AND - GITANA DIRGELIENE (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Mr Duffy Employer Member: Ms Cryan Worker Member: Mr Nash |
1. Appeal of Rights Commissioner's Decision No: r-073638-wt-08/MMG
BACKGROUND:
2. This case concerns an appeal of Rights Commissioner's Decision No: r-073638-wt-08/MMG. The issue concerns the workers claim that she was not provided with adequate Annual Leave and Public Holiday entitlements in compliance with the Organisation of Working Time Act, 1997. The dispute was referred to a Rights Commissioner for investigation. His Decision issued on the 6th November, 2009 and awarded €4000 compensation to the worker for the breaches of the Act.
On the 2nd December, 2009 the employer appealed the Rights Commissioner's Decision in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 16th November, 2010. The following is the Court's Determination:
DETERMINATION:
This is an appeal by Remigijus Zaltauskas T/A Unwanted Clothing (herein referred to as the Respondent) against the decision of a Rights Commissioner in a complaint brought by Gitana Dirgeliene (herein referred to as the Claimant) alleging various breaches by the Respondent of the terms of the Organisation of Working Time Act 1997 (the Act).
Background
The Claimant was employed by the Respondent between 6th April 2007 and 29th August 2008. She was engaged in the distribution of leaflets to households requesting the donation of unwanted clothing. Donations made on foot of these requests were left in bags provided for the purpose and later collected by the Claimant and another employee of the Respondent who acted as driver.
The Claimant contends that during the currency of her employment with the Respondent she was required to work in excess of 48 hours per week, that she only received one break of 15 minutes per day and that she did not receive adequate daily rest. She also complained that the Respondent did not provide her with paid annual leave and that she was not paid in respect of Public Holidays.
The Claimant was paid by reference to the number of bags collected subject to a minimum of €350 per week.
Her complaint was investigated by a Rights Commissioner pursuant to s.27 of the Act. The Respondent failed to attend before the Rights Commissioner. On the uncontested evidence of the Claimant the Rights Commissioner found that her complaints were well founded. The Rights Commissioner awarded the Claimant compensation in the amount of €4,000.
The Respondent appealed to this Court.
Position of the parties
The Claimant did not pursue her complaint in relation to weekly working hours and daily rest. Her complaint before the Court is that she did not receive payment in respect of annual leave and Public Holidays and that she did not receive adequate breaks during the course of her working day.
The Respondent accepted that the Claimant was not paid in respect of annual leave and Public Holidays. The Respondent contends that the Claimant determined her own working hours in consequence of which her employment was outside the purview of the Act by operation of s.3(2)(c) thereof.
Conclusion of the Court
Annual leave and Public Holidays
It is accepted that the Claimant was not provided with paid annual leave in contravention of s.19 of the Act. It is also accepted that the Claimant was not provided with any benefit in respect to Public holidays in contravention of s. 21 of the Act.
Breaks and Intervals at Work
Section 12(2) of the Act provides: -
- (2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).
The Claimant contends that she worked more than six hours per day and only received a 15 minute break.
The Respondent contends that this section was inapplicable to the Claimant’s employment by virtue of s.3(2)(c) of the Act which provides that Part 11of the Act (which includes s.12) shall not apply to: -
- (c) a person the duration of whose working time (saving any minimum period of such time that is stipulated by the employer) is determined by himself or herself, whether or not provision for the making of such determination by that person is made by his or her contract of employment.
On the evidence the Court is satisfied that the Claimant was required to distribute leaflets and collect clothing and was largely free to determine the times during which this work was to be performed, subject to a certain minimum stipulations as to the time that the collections would commence. In these circumstances the Court is satisfied that the Claimant’s employment was of a type envisaged by s.3(2)(c) of the Act. In consequence the employment was excluded from the ambit of s.12(2) of the Act.
Determination
The Claimant’s complaint alleging a contravention by the Respondent of s.19 and s.21 of the Act is well founded. The complaint alleging a contravention of s.12 is not well founded.
The Court is satisfied that the Claimant is entitled to an award of compensation in respect of this contravention. The Court measures the amount of compensation which is just and equitable in the circumstances at €3,400.
The Rights Commissioner’s decision is varied accordingly.
Signed on behalf of the Labour Court
Kevin Duffy
7th December 2010______________________
AHChairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.