DWT10134

• • "Based on the uncontested evidence of the Claimant and his representative I uphold the complaint and require the employer to pay the claimant €4000 in compensation."
  
  The Company appealed this Decision to the Labour Court on 12th May, 2010, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 19th August, 2010.
  

Introduction

This in an appeal by Cara Commercial Merchandising Ltd against the decision of a Rights Commissioner given in a claim brought against it by Mr Inarts Vitols under the Organisation of Working Time Act 1997(the Act). For ease of reference the parties are referred to as they were at first instance. Hence Cara Commercial Merchandising Ltd is referred to as the Respondent and Mr Vitols is referred to as the Claimant.

The Claimant contends that he was required to work in excess of 48 hours per week, in contravention of s.15 of the Act, that he did not receive proper breaks in contravention of s. 12 of the Act and that he was not given advance notification of changes in his working hours and the requirement to work overtime, in contravention of s.17 of the Act.

For reasons which were explained to the Court the Respondent failed to attend the hearing before the Rights Commissioner. On the uncontested evidence of the Claimant the Rights Commissioner held that his complaints were well founded. The Claimant was awarded compensation in the amount of €4,000. The Respondent appealed to this Court.

Scope of the complaints

In so far as is material to this complaint, the Claimant was employed by the Respondent as a temporary relief driver on a number of days between April and August 2009. The within complaints were referred to a Rights Commissioner on or about 11th November 2009. Having regard to the time limits provided for by s.27(4) of the Act, only such contraventions as may have occurred in the period from 12th May 2010 until the termination of his employment in August 2010 are cognisable in this complaint.

Onus of Proof

The Respondent accepts that it did not maintain records in compliance with s.25 of the Act. In consequence the Respondent accepted that it bears the burden of proving compliance with the Act.

The evidence

Evidence was adduced from a number of witnesses on behalf of the Respondent. The Court was told that the Claimant was employed to make deliveries to various businesses in the Dublin area. The Claimant parked his vehicle in a depot in Clondalkin and started work from there each morning. There was flexibility in the starting time which was dictated by the deliveries which the Claimant was required to make. No record was maintained of starting times but the time of deliveries was recorded on a hand held computer device. The evidence adduced was to the effect that drivers would start between 7am and 8.30 am, depending on the deliveries to be made. Having completed their deliveries the drivers would return to the Company depot in Naas and load their vehicles for the next day’s deliveries. In the case of those parking in Clondalkin the driver would return to that depot and finish work for the day. The Court was furnished with details of deliveries made by the Claimant generated by the hand held computer which he operated.

The Court was told that drivers could finish their deliveries as early as 3.30pm but in every case they would be back at the Naas depot not later than 5.30 pm when that facility closed. The evidence tendered to the Court was to the effect that drivers never worked in excess of 48 hours, as claimed by the Claimant.

The Court was further told in evidence that while the Claimant did not have specific break times it was made clear to him at interview and during his induction and training that he should take breaks during the course of his working day. The Court was told that the normal practice amongst drivers is to take breaks at a time between deliveries, usually when the vehicle can be parked in a convenient location. According to the evidence the work schedule is designed to accommodate the taking of breaks in this manner.

With regard to the working of additional hours, the evidence tendered was to the effect that this rarely occurred but that when it did additional hours were offered to drivers on a rotational basis. Not less than one weeks notice of this additional would be provided.

The Claimant did not give evidence.

Conclusions

Having regard to the Respondent’s failure to maintain records the onus of proving compliance with the Act in respect to the matters complained of rests with the Respondent. Thus the Respondent must prove, as a matter of probability that: -

(a) That it did not permit the Respondent to work more than 48 hours in any period of seven days (s.15);

Section 15

Having reviewed the evidence tendered the Court is satisfied that it is highly improbable that the Claimant was permitted to work more than 48 hours in any week. The evidence was to the effect that drivers rarely worked beyond 40 hours per week. There is noting in the evidence to suggest that the circumstances of the Claimant could have been different. Moreover, the Court has seen the records of the deliveries made by the Claimant including the times at which those deliveries were made. It is apparent to the Court that, as a matter of strong probability, the Claimant would not have been required to work in excess of 48 hours per week.

According the Court is satisfied that the Respondent did not contravene s.15 in relation to the Claimant.

Section 12

The Court is satisfied on the evidence that the Claimant was told at interview and during his training that he should take breaks. The Court is further satisfied that the delivery roster was organised so as to accommodate the taking of breaks.

Consequently the Court is satisfied the Respondent did not require the Claimant to work for a period of more than 4 hours and 30 minutes without allowing his a break of at least 15 minutes.

Accordingly the Court is satisfied that the Respondent did not contravene s.12 in relation to the Claimant.

Section 17

The Court is satisfied that there was no contravention of s.17 of the Act in relation to the Claimant.

Determination

Having regard to the findings set out above the within appeal is allowed and the Decision of the Rights Commissioner is set aside.



Signed on behalf of the Labour Court



Kevin Duffy
8th September, 2010______________________
DNChairman



NOTE

Enquiries concerning this Determination should be addressed to David P Noonan, Court Secretary.