FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : KILDOWNET UTILITIES LTD (REPRESENTED BY SHERRY SOLICITORS) - AND - VALERIU ROVENCO (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Nash |
1. Appeal of a Rights Commissioner's Decision R-074710-Wt-09
BACKGROUND:
2. The Worker appealed the Rights Commissioner’s Decision to the Labour Court on 3rd March, 2010, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. The Court heard the appeal on the 8th July, 2010.
DETERMINATION:
The Claimant brought a complaint before a Rights Commissioner pursuant to the Organisation of Working Time Act 1997 (the Act). As the Claimant did not attend before the Rights Commissioner the case failed for lack of prosecution. The Claimant appealed the Decision of the Rights Commissioner.
The Claimant was employed from 6th January 2008 until 19th October 2008 and submitted his claim pursuant to Section 27 to the Rights Commissioner on 21st January 2009.
Ms. Aoife Marrinan, Solicitor, on behalf of the Claimant, alleged that the employer was in breach of Sections 12 and 15 of the Act, as he did not receive a meal break after 6.30pm and he worked in excess of an average of 48 hours per week. It is not disputed that he received two half-hour meal breaks, one at 10.30am and another at 2.00pm. However, Ms. Marrinan submitted that he regularly worked until 7.00pm and beyond.
Ms. Marrinan informed the Court that the Claimant was not pursuing a claim alleging a breach of Sections 17 or 20 of the Act.
Mr. Brian Sherry, Solicitor, on behalf of the Company, submitted records to show that the Claimant worked from 8.00am until 6.00pm each day and on very rare occasions he worked until 6.30pm. He explained that due to planning permission limitations the Company was restricted from working after 6.00pm and would only do so on very rare occasions to facilitate a concrete pour.
Having considered the submissions of both sides and having examined the records submitted the Court is satisfied that there was no breach of Section 12 of the Act and is satisfied that when account is taken of his meal breaks, the Claimant did not work in excess of 48 hours per week on average.
For the reasons referred to above the Court is satisfied that the Company did not contravene the Organisation of Working Time Act 1997 in relation to the Claimant. The Decision of the Rights Commissioner is set aside and substituted with this Determination.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
22nd July,2010______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to David P Noonan, Court Secretary.