FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : KEEGAN QUARRIES LIMITED (REPRESENTED BY COUGHLAN WHITE O'TOOLE SOLICITORS) - AND - REMIGIUSZ TOMANEK (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Ms Ni Mhurchu |
1. Appealing against a Rights Commissioner’s Decision r-069775-wt-08/JW
BACKGROUND:
2. The Employee, a foreign national, was employed as a truck driver from the 23rd April 2007 until his dismissal on the 14th July, 2008. He alleges that his Employer has breached Sections 15, 12 and 19 of the Organisation of Working Time Act 1997. The case was heard by a Rights Commissioner on 7th April 2010 and his Decision was dated 16th June, 2010.
The Employee and Employer jointly 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 28th June and 7th July, 2010 respectively. The Court heard the appeal on the 17th November, 2010, the earliest date suitable to the parties.
EMPLOYEE'S ARGUMENTS:
3. 1. The Employee would not have been aware of Irish Employment Law, in such a case it is even more incumbent on the Employer to maintain records regarding annual leave, hours of work, overtime pay etc. in order to show compliance of Sections of the Act.
COMPANY'S ARGUMENTS:
4. 1. The Company operates in a niche market and offers a just-in-time service in order to compete against larger companies.The Employee benefited by getting paid for extensive hours although in many cases not having to work the hours. It was not uncommon for the site supervisor to call the Employee on his mobile phone as there was no mandatory requirement for him to stay on site unless orders were received
2. Notwithstanding the exemptions as contained in S.I. No.817/2004, the Company has complied with it's obligations under the Organisation of Working Time Act.
DETERMINATION:
The Complainant brought a complaint before a Rights Commissioner pursuant to the Organisation of Working Time Act 1997 (the Act) alleging breaches of Sections 12, 15, and 19. The Rights Commissioner upheld the complaints under Section 12 and 15 and awarded the sum of €1,900.00.The Complainant appealed the quantum of the award decided by the Rights Commissioner and the Decision under Section 19.
The Employer appealed the Rights Commissioner Decision and held that it was exempt from the provision of Section 11, 12, 13 and 16 of the Act, (which deal, respectively with daily rest, breaks, weekly rest and night work), by virtue of S.I. 817 of 2004 Organisation of Working Time Act (Inclusion of Transport Activities) Regulations 2004. In any event the Employer held that it was in compliance the Act.
For ease of reference the parties are referred to as they were at first instance. Hence Mr. Remigiusz Tomanek is referred to as “the Complainant” and Keegan Quarries is referred to as “the Respondent”. The Complainant was employed by the Respondent from 23rd April 2007 until 14th July 2008, as a truck driver.
The Court examined the issue of the law applicable to the organisation of working time of mobile workers inGoode Concrete v 58 WorkersDWT0934 (on appeal). In that case the Court examined the extent to which the Claimants in the proceedings were covered by the provisions of the Organisation of Working Time Act, 1997, and statutory instruments relating thereto.
The Court found the following:
- “There appears to be an absence of clarity concerning the ambit of two statutory instruments, namely S.I. No. 817 of 2004, entitled The Organisation of Working Time (Inclusion of Transport Activities) Regulations 2004 and S.I. No. 2 of 2005 entitled European Communities (Organisation of Working Time of Persons Performing Mobile Transport Activities) Regulations 2005. Statutory Instrument 817/2004 was made pursuant to s.3 of the European Communities Act 1972 (No. 27 of 1972) and s 4(3) of the Organisation of Working Time Act 1997 (No. 20 of 1997). Statutory Instrument 2/2005 was made pursuant to s.3 of the European Communities Act 1972 only. It is expressed on its face to be for the purpose of giving effect to Directive 2002/15/EC of the European Parliament and of the Council of 11 March, 2002.”
However by virtue of Regulation 4 the Regulations workers who are drivers or crew of vehicles used for the carriage of goods where the maximum permissible weight of the vehicle, including any trailer or semi-trailer, is 3.5 tonnes or more are fully covered by the Act of 1997 and are not exempt from the requirements of Sections 11, 12, 13 and 16 of that Act.
Following the making of these Regulations mobile Workers are now entitled to meal breaks as provided by Section 12 and they covered by the restriction of weekly working time to an average of 48 hours in a four month reference period.
The Respondent told the Court that the Complainant submitted weekly time sheet detailing his hours of work from which his pay was calculated each week, however, these were destroyed when the detail was extracted from the time sheets.
Mr. Michael Alymer B.L instructed by Richard Grogan & Associates, Solicitors on behalf of the Complainant submitted that the Complainant worked from 7.00am to 6.00pm Mondays to Fridays and 1.00pm on Saturdays. When he worked on the block lorry he received a 15 minute break at 10.00am, a 30-minute break at 1.00pm, however, when he worked on the cement lorry he had no formal breaks. He held that there were 4.3 days annual leave outstanding to the Complainant.
Mr. Conor O’Toole, Solicitor on behalf of the Respondent stated that the Complainant received a 15 minute break at 10.00am; a 30-minute break at 1.00pm and a 15 minute break in the afternoon. He told the Court that due to the nature of the business it was not uncommon for trucks to be parked for several hours during the day as drivers sit around waiting for an order to come in, during which time the drivers were permitted to leave the Company’s premises and be called back when necessary. The Complainant’s contract of employment stated that his “idle time” was to be used as rest time. The Respondent told the Court that it operated a “just-in-time” system, which allowed the drivers to be paid for extensive hours without necessarily having to work those hours.
Mr. O’Toole submitted details of the annual leave availed of by the Complainant which indicated that during his entire employment the Complainant worked 50 weeks, he received 19.3 days annual leave. Mr. Aylmer held that the Respondent was calculating the annual leave entitlement incorrectly as it was firstly necessary to examine the leave year 2007/2008 and secondly the leave year 2008/2009, in which case he contended the Complainant received 14 days annual leave in 2007/2008 and 4.3 days annual leave in 2008/2009.
The Court has considered the written and oral submissions of both parties, the records produced and the evidence given by the Complainant.
Can Respondent avail of Exemptions under S.I. 817 of 2004
The Court was told that the Complainant was engaged in driving trucks of over 3.5 tonnes. Accordingly, for the reasons outlined above the Court finds that the Complainant is covered by all the provisions of the Organisation of Working Time Act 1997 and is not a driver covered by the exemptions provided for by S.I. 817 of 2004.
Section 12 Meal Breaks
The Respondent told the Court that the Complainant received two 15 minute breaks and a 30-minute lunch break each day. This was not denied on the days that he worked on the block lorry however; the Court was not given any evidence to support the contention that on the days when the Complainant was on the cement lorries he had the required statutory breaks. On that basis the Court finds that the Complainant’s complain was well founded.
Section 15 Working Excessive Hours
The Act provides that an employer shall not permit an Employee to work, in each period of 7 days, more than an average of 48 hours in a reference period of 4 months.
Mr. Alymer stated that the Complainant worked on average 50 hours per week and consequently held the Respondent was in breach of Section 15 of the Act. Mr. O’Toole stated that when the break periods were discounted the worker was scheduled to work 49 hours and 45 minutes per week on average, however, he contended that this was not an accurate reflection of the hours worked as the Complainant was allowed to leave early on many occasions, depending on the work available and the weather.
The Court was provided with the payslips, but not the time sheets, therefore the Court finds that the Respondent has failed to prove, on the balance of probabilities that it complied with the Act and accordingly finds that the complaint is well founded.
Section 19 Annual Leave
The Court has examined the information supplied by the Respondent outlining the days/weeks when the Complainant did not work, and those days/weeks when he availed of annual leave and public holiday entitlements. Mr.Aylmer did not dispute the veracity of this information.
Section 19 of the Act provides that in a leave year where the Employee changes employment he/she will be entitled to either one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or 8 per cent of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks). In this case the Complainant can be considered as having changed his employment as he did not commence employment with the Respondent until 23rd April 2007.
Therefore, based on the above statutory provision the Court calculated the Complainant’s annual leave entitlement in the period 23rd April 2007 to 31st March 2008 as 17 ½ days, during this period he received 15 days annual leave. For the period 1st April 2008 to 14th July 2008 the Complainant had an entitlement to 5 ¾ days annual leave, during this period he received 4. 3 days. Accordingly, the Court finds that the Complainant is entitled to an outstanding annual leave entitlement of 3. 95 days and accordingly find that the complaint is well founded.
Determination
The Court had found that the Respondent was in breach of Sections 12, 15 and 19 of the Act. In the circumstances of this case, the Court considers that the Complainant should be paid compensation in the amount of €2,300.00 in full settlement of all of his claims under the Organisation of Working Time Act, 1997.
The Decision of the Rights Commissioner is varied accordingly.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
13th December, 2010______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.