FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : MID WEST TYRES LIMITED (REPRESENTED BY O'GORMAN SOLICITORS) - AND - KESTAS GRAMAUSKAS (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Mr Hayes Employer Member: Ms Doyle Worker Member: Mr O'Neill |
1. Appealing against a Rights Commissioner’s Decision r-067886-wt-08
BACKGROUND:
2. The Worker was employed as a Tyre Fixer from 3rd February 2007 until his dismissal on 3rd June 2008. He made a number of complaints alleging breaches of the Organisation of Working Time Act 1997 which was heard by a Rights Commissioner on 21st October, 2009. Based on the uncontested evidence adduced at the hearing the Rights Commissioner found in favour of the Worker.
The Employer 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 1st December, 2009. The Court heard the appeal on the 24th November, 2010, the earliest date suitable to the parties.
WORKER'S ARGUMENTS:
3. 1. The Worker claims that he did not get written notice of the terms and conditions of employment, that he was also required to work in excess of 48 hours per week. That occasionally he was required to do overtime without getting the required notice and that he did not alwaysreceive his statutory breaks.
COMPANY'S ARGUMENTS:
4. 1. The system allowed the Worker to take morning and evening breaks and if there was a staff shortage the doors would be closed at lunch time. The Company concedes that records of breaks were not kept in the correct manner.
2. The Worker did not work in excess of 48 hours per week and a study of the time sheets confirm this.
DETERMINATION:
The case comes before the Court pursuant to Section 28(8) of the Organisation of Working Time Act 1997 (the Act) by way of an appeal by Mid West Tyres Ltd (the Respondent) against a decision of a Rights Commissioner made pursuant to Section 27(2) of the Act.
In his decision the Rights Commissioner said
- Based on the uncontested evidence adduced at hearing I find that the complaint is well founded and that there were breaches of the provisions of the Act. I hereby require the respondent to pay the claimant €5,000 in compensation.
Mr Kestas Gramauskas (the Complainant) was represented by Ms Aoife Marrinan Solicitor (Richard Grogan and Associates).
Background:
The Complainant worked for the Respondent as a tyre fitter from 3rd February 2007 until 3rd June 2008. The Respondent had three branches and the Complainant was transferred between each of them as required. He commenced work in the Shannon branch and was transferred as required to the Limerick branch and subsequently to Raheen. Finally he was transferred back to the Limerick branch from which he was dismissed in June 2008.
Complainants Position:
Ms Marrinan submitted that the complainant’s normal working week was between the hours of 9am and 6pm Monday to Friday and on alternate Saturday’s between 9am and 1pm. In addition he was required to work overtime as required. Consequently his total working week averaged in excess of 49 hours in any four-month period contrary to the provisions of Section 15(1) of the Act.
Ms Marrinan further submitted that the Complainant was regularly on call at night and was required to respond when called out at short notice to attend to customers in difficulties. Following such a call out he was required to report for work at normal starting time the following morning contrary to Section 11 of the Act.
Ms Marrinan further submitted that the Complainant was not afforded the opportunity to take rest breaks contrary to the provisions of Section 12(1) and 12(2) of the Act.
Ms Marrinan further submitted that the Complainant was required to work overtime without notice contrary to the provisions of Section 17(1) and (2) of the Act.
Ms Marrinan submitted that the Respondent had failed to keep records in a manner prescribed by Section 25 (2) of the Act. Accordingly the onus of proving compliance with the Act lay with the Respondent.
Respondent’s Position
The respondent submitted detailed notes of the hours worked by the Complainant and copies of all relevant pay slips.
On the basis of these documents the Respondent submitted that the Complainant was required to work an average 46.5 hours and 42.5 hours on alternate weeks. He submitted that after allowance was made for occasional overtime working the Complainant did not work in excess of an average of 48 hours per week.
The Respondent admitted that the Complainant was required to respond to call outs and was required to report for work at normal time the following morning. This occasionally gave rise to a daily rest period of less than 11 hours.
The Respondent submitted that the Complainant was in a position to avail of a morning break of 15 minutes and a lunch break of 30 minutes between the hours of 12:30 and 3:00pm.
The Respondent advised the Court that he did not maintain records in the prescribed format.
Findings of the Court:
The Respondent advised the Court that he did not maintain records in a manner consistent with the provisions of Section 25 of the Act.
Section 25 provides:
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 morepremises 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.(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.
The Minister, in S.I. No. 473/2001 — Organisation of Working Time (Records) (Prescribed Form and Exemptions) Regulations, 2001 prescribed the form in which an employer should maintain records pursuant to Section 25 of the Act.
The Respondent confirmed to the Court that no such records were maintained. Accordingly the onus of proving compliance with the provisions of the Act lies with the Respondent.
Section 11 of the Act:
Section 11 says: -
- 11.—An employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer
The Respondent advised the Court that, on occasions, he did not comply with the provisions of Section 11 of the act.
The Court is satisfied that the Respondent systematically breached this section of the act and by his own admission continues to do so.
Accordingly the Court upholds this complaint.
Section 12 of the Act
The relevant part of Section 12 of the act says:
- 12.—(1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.
(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
The respondent advised the Court that he had no system in place to ensure that his employees could avail of their statutory entitlement to breaks as set out in Section 12(1) of the Act. He further admitted that he was not always present in the garage and that whilst he sought to ensure that the Act was complied with he had no records of such compliance. The Complainant said that he did not always get to take his rest breaks and he regularly worked through the day without adequate rest from work.
On the basis of the information supplied to it the Court finds that the Respondent has failed to prove compliance with the provisions of Section 12 of the Act. Indeed on the basis of the information provided to it the Court is satisfied that the Respondent, as a matter of fact, did not comply with the provisions of Section 12 of the Act.
Accordingly the Court upholds this complaint.
Section 15 of the Act.
Section 15 of the Act says
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
The Respondent provided what records he had of the hours worked by the Respondent. Whilst the records were not in the prescribed form, they nevertheless did satisfy the Court that the Respondent was not required to work in excess of an average of 48 hours in a four-month period.
Accordingly the Court does not uphold this complaint.
Section 17 of the Act
17.—(1) If neither the contract of employment of the employee concerned nor any employment regulation order, registered employment agreement or collective agreement that has effect in relation to the employee specifies the normal or regular starting and finishing times of work of an employee, the employee's employer shall notify the employee, subject to Subsection (3), at least 24 hours before the first day or, as the case may be, the day, in each week that he or she proposes to require the employee to work, of the times at which the employee will normally be required to start and finish work on each day, or, as the case may be, the day or days concerned, of that week.(2) If the hours for which an employee is required to work for his or her employer in a week include such hours as the employer may from time to time decide (in this subsection referred to as “additional hours”), the employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in that week on which he or she proposes to require the employee to work all or, as the case may be, any of the additional hours, of the times at which the employee will be required to start and finish working the additional hours on each day, or, as the case may be, the day.
(3) If during the period of 24 hours before the first-mentioned or, as the case may be, the second-mentioned day in Subsection (1) or (2), the employee has not been required to do work for the employer, the time at which the employee shall be notified of the matters referred to in subsection (1) or (2), as the case may be, shall be not later than before the last period of 24 hours, preceding the said first or second-mentioned day, in which he or she has been required to do work for the employer or days concerned, of that week.
(4) A notification to an employee, in accordance with this section, of the matters referred to in subsection (1) or (2), as the case may be, shall not prejudice the right of the employer concerned, subject to the provisions of this Act, to require the employee to start or finish work or, as the case may be, to work the additional hours referred to in subsection (2) at times other than those specified in the notification if circumstances, which could not reasonably have been foreseen, arise that justify the employer in requiring the employee to start or finish work or, as the case may be, to work the said additional hours at those times.
(5) It shall be a sufficient notification to an employee of the matters referred to in subsection (1) or (2) for the employer concerned to post a notice of the matters in a conspicuous position in the place of the employee's employment.
The Respondent advised the Court that his practice was to give the complainant a weeks notice when he was required to be on call. The actual call outs were by their nature at short notice as they are in the nature of emergencies. He said that Saturday overtime was optional. He said that weekday overtime was not regular and that is was his practice to give the Complainant one to two hours notice of midweek overtime and that working it was compulsory. The Complainant agreed with this account.
Section 17(1) of the Act says that an employer shall give at least 24 hours before the first day or, as the case may be, the day, in each week that he or she proposes to require the employee to work, of the times at which the employee will normally be required to start and finish work on each day, or, as the case may be, the day or days concerned, of that week.
The Respondent told the Court that is was his practice to give considerably less notice in respect of compulsory mid-week overtime than that required by Section 17(1) of the Act. No submission was made to the Court pursuant to Section 17(4) of the Act.
Accordingly the Court upholds the complaint under this section.
Remedy:
The Organisation of Working Time Act transposes into Irish Law EU Directive 93/104/EC. This is a health and safety directive and is designed to protect employees against injury and illness through excessively long hours of work.
The European Court of Justice(ECJ) inSabine von Colson and Elisabeth Kamann v Land Nordrhein-Westfalensaid that in making awards of compensation for breaches of a workers rights under a European Directive that
"The award of compensation, 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 incureed in connection with the application"
Whilst this case was heard by the ECJ pursuant to the Equality Directives the principles nevertheless apply in relation to matters arising under the Organisation of Working Time Directive also.
Accordingly in making its award of compensation the Court has taken into account the requirement that it be effective and that it have a deterrent effect on the Respondent. The Court therefore upholds the Rights Commissioner’s Decision and awards the Complainant the sum of €5,000 compensation in respect of the Complaints that have been upheld herein.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
222nd December, 2010______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.