FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : TOP SECURITY LTD (REPRESENTED BY MANAGEMENT SUPPORT SERVICES (IRL) LTD) - AND - TADAS SONGAILA (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-079293-Wt-09/Tb
BACKGROUND:
2. The case before the Court concerns an appeal by the Company of a Rights Commissioner's Decision No. R-079293-WT-09/TB. The Worker concerned was employed by the Company from September 2007 until March, 2009. It was submitted by the worker that he was required to work 4 days on a twelve hour shift and two days off then four nights on a twelve hour shift, averaging over 48 hours per week. The Worker did receive breaks but not always at the appropriate times. The Worker requested particulars of all his working time records but it is claimed the Company did not respond to the request. The Company's position is that the Worker's actual working time was 43.88 hours per week and that he recieved in excess of his entitlements regarding breaks.
The Employer appealed the Rights Commissioner’s Decision to the Labour Court on 17th November 2009, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. The Court heard the appeal on the 4th May, 2010.
EMPLOYEE'S ARGUMENTS:
3. 1 The obligation is on the employer to ensure that work is structured in such a way that an employee receives his breaks at the appropriate times.
2 The Company should be in a position to show rosters and to show what hours were actually worked. The burden of proof is on the employer.
COMPANY'S ARGUMENTS:
4. 1 The worker was not required to work in excess of the average 48 hour week and he received breaks in excess of those to which he was entitled under the Organisation of Working Time Act.
2 The Company is also covered by the exemptions outlined in Sections 11, 12, 13, 16 of the Act given to employees involved in Civil Protection.
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 and 15. The Rights Commissioner upheld the complaint under Section 15 and awarded the sum of €2,000.00.He did not uphold the complaint under Section 12. The Employer appealed the decision of the Rights Commissioner.
The Employer did not attend before the Rights Commissioner for reasons, which were explained, to the Court.
The Court has considered the employer's appeal of the Rights Commissioner's recommendation. Based on the submissions made and the records produced by the employer to substantiate its case the Court is satisfied that there was no breach of Section 15. Accordingly, the Court upholds the employer’s appeal and overturns the Rights Commissioner’s Decision.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
17th May, 2010______________________
dnDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to David P Noonan, Court Secretary.