FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : SOUTH EAST CONCRETE LIMITED (REPRESENTED BY ESA CONSULTANTS) - AND - KALMAR GROSSFELDT (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr Nash |
1. Appealing against a Rights Commissioner's Decision r-069687-wt-08/DI
BACKGROUND:
2. The Claimant was employed as a Mechanic from 20th February, 2006 until his dismissal on the 20th June 2007 for gross misconduct. The Claimant is seeking compensation from the Employer for breaches of the Organisation of Working Time Act, 1997 under Sections 12,15 and 17. The Complaint was investigated by a Rights Commissioner who recommended that compensation be awarded to 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 3rd November, 2009. The Court heard the appeal on the 22nd June, 2010, the earliest date suitable to the parties.
WORKER'S ARGUMENTS:
3. 1. The Worker was required to work in excess of the standard 48 hour rule per week and did not receive the stipulated number of meal breaks. No records of his working time were produced by the Employer on whom the onus to keep such records, rests.
2. The Worker did not always get the statutory 24 hours notice of overtime,
COMPANY'S ARGUMENTS:
4. 1. The Worker has made allegations that he worked excessive hours and did not receive the required number of breaks, however the time sheets show that the average number of hours worked amounted to 45 hours per week and he regulated his own breaks.
2. On rare occasions due to weather conditions or other factors outside of Management's control 24 hour notice was not always given prior to the Worker working overtime.
DETERMINATION:
The Claimant 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 17. The Rights Commissioner upheld the complaints and awarded the sum of
€3,500.00.The Employer appealed the Decision of the Rights Commissioner.
The Court has considered the Employer's appeal of the Rights Commissioner's Recommendation. Based on an examination of the submissions made by both parties the Court finds that on rare occasions when the Claimant worked after 6.30pm there is no evidence to show that he received a meal break and consequently there was a breach of Section 12 of the Act.
From an examination of the records produced of the Claimant’s clocked in starting and finishing times and deducting his acknowledged meal breaks, the Court finds that he worked on average 48.52 hours per week in the relevant four month period. Therefore, the Court finds that the Employer was in breach of Section 15 of the Act.
The Employer informed the Court that on certain occasions due to weather conditions the Claimant was required to pour concrete at times outside his normal working hours for which it may not have always been possible to give the requisite 24 hours notice.
The Court is satisfied that the notification of additional hours in such circumstances comes within the definition of Section 17 (4):
- “A notification to an employee….. 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.”
The Court finds that the Employer contravened Section 12 and 15 and in all the circumstances awards a sum of €500.00and directs the Employer to pay to the Worker compensation in that amount.
Accordingly, the Decision of the Rights Commissioner is varied.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
16th July, 2010______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.