FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : JOSEPH FLYNN TRADING AS JOSEPH FLYNN SITE EXCAVATIONS - AND - DARIUSZ SCIBEK (REPRESENTED BY POLISH CONSULTANCY ENTERPRISE) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioner's Decision r-074263-wt-09-TB.
BACKGROUND:
2. This case concerns an appeal by the Employer of Rights Commissioner's Decisionr-074266-wt-09-TB.The Worker was employed by the Company from 16th February, 2007, until 23rd January, 2009.The Worker referred a case of alleged infringements of the Organisation of Working Time Act, 1997, to a Rights Commissioner for investigation and a hearing was arranged for 7th May and 22nd June, 2009. The Rights Commissioner's Decision was as follows:
- "The respondent failed to maintain records in relation to the claimant's working time as required by S.I. 473/2001. Section 25(4) of the Act provides that where records are not kept in the prescribed form the onus of proving the provisions ofthe Act were complied with rests with the employer. I uphold the complaint and require the employer to pay the claimant €2,000 in compensation."
The Company appealed this Decision to the Labour Court on 24th August, 2009, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 5th November, 2009.
DETERMINATION:
A complaint was presented to a Rights Commissioner by the worker in January 2009 pursuant to Section 27 of the Organisation of Working Time Act, 1997(the Act). He complained that the respondent breached Section 15 of the Act as he worked on average in excess of 48 hours per week.
For ease of reference the parties are referred to as they were at first instance. Hence Mr. Mr. Dariusz Scibek is referred to as “the complainant” and Joseph Flynn Site Excavations t/a Flynn Excavations is referred to as “the respondent”.
A Rights Commissioner hearing was held on 12th July 2009. The Rights Commissioner found that the complaint was well founded and awarded the worker €2000.00 compensation in respect of breach of the Act. It is against that decision that the respondent appealed to the Court stating that the worker had not worked in excess of an average of 48 hours per week. The respondent produced substantial records for the Court’s consideration including Tachograph and Eurotrak evidence which gave details of both driving and non-driving time.
The Court has considered the written and oral submissions of both parties and has examined the records produced. The respondent told the Court that the complainant received a 30-minute break every 4-½ hours, whereas the complainant stated that he received one 30-minute break per day. Due to the lack of evidence to support the respondent’s contention the Court accepts the complainant’s evidence on this point.
Section 15 of the Act provides as follows: -
- 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
(b) 6 months-- (i) in the case of an employee employed in an activity referred to in paragraph 2, point 2.1. of Article 17 of the Council Directive, or
(ii) where due to any matter referred to in Section 5, it would not be practicable (if a reference period not exceeding 4 months were to apply in relation to the employee) for the employer to comply with this subsection
- (i) in the case of an employee employed in an activity referred to in paragraph 2, point 2.1. of Article 17 of the Council Directive, or
Mobile workers are covered by the general provisions of the Organisation of Working Time Act 1997, therefore the appropriate reference period is a 4-month period.
The Court has carefully examined the evidence produced and has taken account of the 30 minute break per day. The Court has examined the 4-month period prior to the date of claim for which records are available i.e. from 1st August to 26th November 2008, and finds that the average working hours for the complainant are 45 hours and 4 minutes. Therefore, the Court finds that the respondent did not breach Section 15 of the Act.
The employer’s appeal is allowed and the decision of the Rights Commissioner is set aside.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
29th January, 2010______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.