FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : CLARE CIVIL ENGINEERING LIMITED (REPRESENTED BY HAYES SOLICITORS) - AND - VALERIJS MJASOJEDOVS (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Mr Nash |
1. Appealing against a Rights Commissioner’s Decision Wt45235/06/MR
BACKGROUND:
2. The worker was one of four employees who brought a claim against the Company. He was employed by the Company from 9th May, 2005, to 28th August, 2006. His claim is that he did not receive proper breaks, that he was required to work in excess of 48 hours per week and that he did not receive proper holiday pay. The Company refutes the three aspects of the claim and supplied documentation to the Court to support its case. It contends that workers received breaks of 30 minutes twice per day and that they rarely worked more than 48 hours per week when breaks and overtime were removed from the overall weekly figure.
The complaint was referred to a Rights Commissioner pursuant to Section 27 of the Act. The Rights Commissioner found that the
“…respondent company has contravened the Organisation of Working Time Act, 1977. This conclusion is based on both the figures contained in the limited documentation provided to me and on the clear absence of proper records as required by the Act.
The Rights Commissioner's decision was as follows:
"In accordance with Section 27(3) of the Organisation of Working Time Act, 1997, I hereby declare that Valerijus Mjasojedovs's complaint under this Act was well founded and I now require Clare Civil Engineering Ltd to pay compensation under the Act of €7,500 to Mr. Mjasojedovs."
The Company appealed the decision to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997, on the 23rd October, 2009. A Labour Court hearing took place on the 13th July, 2010, in Limerick. The following is the Court's determination:
DETERMINATION:
Complainant's case:
The Complainant Mr Valerijs Mjasojedovs represented by Mr Richard Grogan (Richard Grogan and Associates, Solicitors) alleged that the Respondent, his employer, had breached the Act by
a) Requiring him to regularly work in excess of the statutory limit of 48 hours per week contrary to Section 15 of the Act.
b) Regularly denying him his entitlement to a rest period of 11 hours between shifts contrary to Section 11 of the Act.
c) Requiring him to work for extended periods of time without a break, contrary to Section 12 of the Act.
d) Failing to maintain records contrary to Section 25 of the Act.
Respondent's case:
The Respondent, Clare Civil Engineering Ltd, was represented by Ms Anne Lyne, Hayes Solicitors, appealed a Decision of the Rights Commissioner. Ms Lyne submitted that the Respondent at all times complied with the provisions of Sections 11, 12 and 13 of the Act and if there were breaches of any of these sections they were inadvertent and minor in nature. Furthermore Ms Lyne submitted that the employer did maintain records of hours worked by the complainant.
In response to the complaint under Section 11 of the Act, Ms Lyne submitted that the Respondent worked in the construction industry and that the start and finishing time varied depending on the nature of the project in hand. However, she submitted that the Respondent complied with the requirements of Section 11 of the Act by affording all of its employees a minimum of 11 hours rest between shifts. In support of this submission documents were submitted to the Court indicating the hours of work undertaken by the claimant for each day of his employment.
In response to the complaint under Section 12 of the Act Ms Lyne submitted that the Respondent operated standard break times on sites as follows : -
Work commenced at 0700 hours. A break of thirty minutes was universally taken at 1000 hours. Work resumed at 1030 hours and continued until 1400 hours when another break of 30 minutes was taken. Work resumed at 1430 hours and continued until normal finishing time of 1700 hours.
In response to the complaint under Section 15 of the Act, Ms Lyne submitted documents to the Court showing the daily and weekly hours worked by the Complainant for each day of his employment. In addition Ms Lyne submitted wage records that, she said, could be cross-referenced with the daily and weekly hours documents to establish that there was no occasion on which the provisions of Section 15 of the Act had been breached in respect of this employee.
In the course of the hearing Mr Grogan accepted that the alleged breach of Section 12 of the Act was not significant and that the Complainant generally received his entitlements in this respect.
In response to the complaint under Section 25 of the Act Ms Lyne submitted that the Company maintained records of hours worked in respect of each employee within the Company and that these records formed the basis on which salary was calculated and paid to the complainant.
In the course of the hearing Mr Grogan accepted that the practice in relation to breaks as outlined by the Respondent reflected the reality of what occurred on site. However he noted that the records were not maintained in the manner prescribed by Statutory Instrument No 473/2001.
Mr Grogan submitted that records had been supplied to the Court that had neither been provided to him directly when he had sought them nor had they been submitted at the hearing of the matter before the Rights Commissioner. However, he indicated he did not want additional time to review the records and was satisfied that the Court would proceed with the hearing of the matter. He did not dispute the accuracy of the records, however, he did argue that they were not sufficiently precise to enable the Court to conclude that the Respondent complied with the relevant provisions of the Act. He further contended that the Complainant had never been asked to sign the documents and that consequently they were not sufficient to meet the requirements of the Act. The Complainant did not challenge the accuracy of the records submitted to the Court.
Findings of the Court:
The Court, having considered the submissions made and evidence adduced by the parties is satisfied that
•The Respondent complied with Section 12 of the Act by providing the complainant with breaks as set out in the section.
•The Respondent did not require the Complainant to work“ in each period of 7 days, more than an average of 48 hours, calculated over a 4 months period”
•The Respondent, complied with Section 11 of the Act.
•The Respondent, contrary to Section 25 of the Act, failed to maintain records in the prescribed manner, however, a breach of Section 25 is an offence under the Act and is not a matter in respect of which a complaint may be raised by an employee.
Determination:
In view of the Court's findings that the respondent did not commit a breach of the provisions of the Act, the appeal is upheld and the Rights Commissioner’s Decision is set aside.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
10th September, 2010______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.