FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : PEADER KELLY LANDSCAPING LIMITED (REPRESENTED BY MR JOHN BOLGER) - AND - MAREK GWORYS DIVISION : Chairman: Mr Duffy Employer Member: Ms Cryan Worker Member: Mr Nash |
1. Appealing of Rights Commissioner's Decision No: r-074760-wt-09/DI
BACKGROUND:
2. This case concerns an appeal by the employer of Rights Commissioner's Decision No: r-074760-wt-09/DI. The issue concerns a worker who claimed he did not receive adequate rest breaks or payment for overtime that he worked. The Employer's position is that all workers received their due entitlements under the Act.
The matter was referred to a Rights Commissioner for investigation. His decision issued on 26th November, 2009 and awarded the worker €750 on the basis that he did not receive adequate daily rest breaks.
On the 23rd 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 Wednesday 17th November, 2010.
At the Labour Court hearing the worker submitted that he was no longer contending that he did not receive adequate rest breaks and that his claim specifically related to the non payment of overtime.
The following is the Court's Determination:
DETERMINATION:
This is an appeal by Peader Kelly Landscaping Ltd (the Respondent) against the decision of a Rights Commissioner in a claim by Marek Gworys (the Claimant) under the Organisation of Working Time Act 1997. The Rights Commissioner found that the Claimant was not afforded adequate daily breaks by the Respondent. The Claimant was awarded compensation in the amount of €750.
In the submissions made on behalf of the Respondent the Court was told that the Claimant and all other employees of the Respondent were afforded all the breaks to which they were entitled. It was accepted, however, that records were not maintained in the statutory form.
The Claimant told the Court that he was not pursuing a complaint in respect to breaks. He said that his complaint was that he worked overtime for which he was not paid.
Determination of the Court
The dispute, in so far as it relates to alleged non-payment for overtime, is not a matter that comes within the scope of the Organisation of Working Time Act 1997. Consequently the Court cannot deal with that complaint.
The Claimant told the Court that he was not alleging that he did not receive adequate breaks. In these circumstances the decision of the Rights Commissioner cannot stand and it is set aside.
Signed on behalf of the Labour Court
Kevin Duffy
8th December 2010______________________
AHChairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.