FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : PRIMARK LTD (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - TANIA ZORRILLA PRECIADO DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Mr Nash |
1. Appealing against a Rights Commissioner's Decision R-070227-Wt-08/Jt
BACKGROUND:
2. The issue before the Court concerns an appeal by the worker of the Rights Commissioners Decision No. R-070227 -WT-08/JT. The Worker referred her case regarding alleged infringements of the Organisation of Working Time Act, 1997 to the Rights Commissioner for investigation. The Rights Commissioner issued his Recommendation on 10th June, 2009. The Worker appealed the Decision to the Labour Court on the 20th July, 2009. A Labour Court hearing took place on the 11th March, 2010.
DETERMINATION:
Issue:
The issue came before the Court by way of an appeal under Section 28(1) of the Organisation or Working Time Act 1997 (the Act). For ease of reference the parties shall be referred to by the same designations as applied before the Rights Commissioner namely the Complainant and the respondent.
The Complainant alleges that the Respondent is in breach of Section 11 of the act which states:-
- 11.An employee shall be entitled to a rest period of not less than 11consecutive hours in each period of 24 hours during which he or she works for his or her employer.
Background
The Complainant submitted that she worked as a Weekend Manager in Penney’s store in O’Connell Street from 16th November 2006 to 31st August 2008. She worked an average of 25 hours spread over three shifts per week. She worked late night trading on Friday of each week and all day Saturday and Sunday. Quite frequently the Complainant was rostered to finish work at 22:15 on Friday night and commence work on Saturday morning at 9:15 a break of precisely 11 hours. The Complainant alleged that she was regularly delayed leaving the shop beyond her normal finishing time because of “handover” requirements associated with her job. Accordingly, if she were to commence as scheduled at 9:15 a.m. the following morning, she could not avail of the eleven hours' rest to which she was entitled in accordance with Section 11 of the Act. She said management was aware of this but did nothing to address the problem.
Position of the Parties:
In support of her complaint the Complainant outlined the events which occurred on one specific weekend. She stated that matters came to a head in week commencing 14th July 2008. That week she was scheduled to finish work on Friday 18th July 2008 at 22:15 hours and report for work again on Saturday 19th July 2008 at 09:15 hours a break of precisely 11 hours. She stated that she was aware from previous experience that it was unlikely that she would in fact be in a position to effect the handover to the nightpack manager and leave the store at 22.15. She decided to request a change in her roster to finish at 22:30 on Friday 18th July, 2008 and to commence work at 09:30 hours on Saturday 19th July, 2008.
She approached a senior member of the Personnel Department on Thursday 17th July with this request. Her request was refused on the grounds that there was no reason why she could not leave the premises at her rostered time and commence again on Saturday at her scheduled start time thereby enabling her to avail of the eleven hours rest provided for in Section 11 of the Act.
In the event the Complainant said she was not in a position to clock out and leave the store on Friday 18th of July, 2008 until 22:32 hours. She adjusted her roster to better enable her avail of the statutory eleven hours rest period between shifts and reported for work on Saturday 19th July at 09:26 hours. As a result a meeting was arranged between the Respondent and the Complainant at which she was told that she could not alter rosters without management approval.
The Complainant advised the Court that it was not possible to work the rosters because of the nature of the handover she had to undertake at the end of her Friday night shift and that the inevitable consequence was that she finished late and could not avail of her entitlements under Section 11. She stated the employer was fully aware of this and took no action to put matters right. She said that she would be liable to disciplinary action if she left the shop without effecting the handover of keys to the nightpack manager.
The Respondent denied that the rosters could not be complied with and asserted that they could and should be adhered to and that there was no operational reason for the Complainant not to do so.
The Respondent through its representative Mr Paul Dunne of IBEC submitted that the roster was in compliance with the provisions of the Act and specifically Section 11 thereof. The Respondent stated that the roster was designed to ensure that the employee received adequate rest between shifts and there was no requirement for the Complainant to stay beyond her rostered hours. The meetings that were held after the incident on 19th July 2008 were for the purpose of ensuring that the Complainant understood that there was no need to stay beyond her rostered finishing time.
The Respondent accepted that on the 18th/19th of July, 2008 the Complainant was six minutes short of the eleven hours rest between her shifts as provided for in Section 11 of the Act. However, the Respondent submitted that this shortfall was entirely the responsibility of the Complainant and would not have arisen had she complied with the roster.
The Respondent submitted that the Complainant worked part time and that she had adequate opportunity for rest should she work in excess of her rostered hours.
In this instance the Complainant finished work on 19th July,2008 at 19:15 and did not commence work until 9:45 on the 20th July, 2008 – a total of 14 hours and 30 minutes. This, the Respondent asserted, more than compensated for the six minute shortfall in the rest period that occurred between the end of her shift on 18th July, 2008 and the commencement of her shift on 19th July 2008.
Findings of the Court:
The Court has carefully considered the oral evidence and written submissions presented by both parties.
In essence the Court has to decide whether or not the working arrangements in place for the handover at the end of the shift on 18th July 2008 realistically enabled the Complainant to leave the premises strictly in accordance with her roster so as to comply with Section 11 of the Act before the rostered commencement of her work the following morning. If the Court finds that the arrangements were such as to constitute a breach of section 11 of the Act the Court must then consider whether the Respondent is entitled to rely on the provisions of Section 4 of the Act.
Having considered all the evidence before it the Court has concluded that the Respondent failed to ensure that the Complainant was in a position to leave the premises promptly at the end of her roster. Accordingly, the Court finds that on this occasion, having been notified of the difficulty that was likely to arise, the Respondent was aware that the Complainant, despite the rostered start and finish times, could not avail herself of the eleven hours' daily rest period and consequently was in breach of Section 11 of the Act. The Court is satisfied that the Respondent was aware beforehand and took no action to address the possibility that the Complainant could be delayed leaving the premises at the end of her late shift on Friday 19th July nor did the Respondent make any arrangement to adjust the finish and start times, respectively, to accommodate this reality.
From the evidence given by the Complainant , the Court is also satisfied that this was not the first occasion on which this had occurred.
Section 4
The Court went on to consider whether Section 4 of the Act applied. Section 4 states
4.—(1) Without prejudice tosection 6,section 11or13or, as appropriate, boththese sections shall not apply, as respects a person employed in shift work,each time he or she changes shift and cannot avail himself or herself of therest period referred to insection 11or13or, as the case may be, boththosesections.
In this case the roster clearly provided for an 11 hour break between the scheduled finish and start times on the 18th and 19th July, 2008. Accordingly, it was the intention of the parties that the Complainant could avail herself of the rest period referred to in Section 11. It is clear from Section 4 that the exemption only applies where the inability to avail themselves of the rest period referred to in Section 11 arises directly out of the change of shift itself and not for any other reason. In this case the failure of the Complainant to avail herself of the eleven hour rest period did not arise out of a change of shift as this was provided for in the roster. Instead it arose out of a failure of management to provide a system of work that enabled the Complainant to leave the premises in accordance with the terms of her roster. Accordingly Section 4 has no application in this case.
Determination:
The Court finds that the Respondent is in breach of Section 11 of the Act. The Court also finds that Section 4 of the Act has no application in this case.
The Court determines that the appropriate award in this case is one of compensation .
When making an award under this Act the Court must take cognizance of the decision of the European Court of Justice (ECJ) in Van Colson and Kamann [1984] ECR 1891 (Van Colson). In that case the ECJ held that “when considering awards of compensation for breaches of Community Rights, the sanction imposed must be effective, proportionate and dissuasive; they must act as a disincentive against future infractions by the employer”.
Having considered the evidence and applying the principles set down by the ECJ in Van Colson and Kamann [1984] ECR 1891 the Court awards the Complainant €2,500. The appeal is allowed and the Rights Commissioner Decision is set aside.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
28th July,2010______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to David P Noonan, Court Secretary.