FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : KYLE INTERNATIONAL TRANSPORT LIMITED (REPRESENTED BY PENINSULA BUSINESS SERVICES (IRELAND) LIMITED) - AND - ANDREW JITOBAH (REPRESENTED BY COSGRAVE SOLICITORS) DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal against a Rights Commissioner’s Decision No.R-091502-WT-10/JC.
BACKGROUND:
2. The Worker concerned was employed as a Driver by the Company from April 2009 until his contract was terminated in February 2010.
The matters before the Court concern excessive working hours, insufficient rest breaks and the non-payment of Sunday premium.
The issues were referred to a Rights Commissioner for investigation. Her Decision issued on the 25th January 2011 in which she found in favour of the Worker and awarded him compensation in the amount of €5,000.
- The Company appealed the Rights Commissioner's Decision to the Labour Court on the 18th February 2011, in accordance with Section 28(1) the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 30th June 2011.
COMPANY'S ARGUMENTS:
3. 1. The Company contends that the amount compensation awarded to the Worker was excessive in light of the short period of his employment.
WORKER'S ARGUMENTS:
4. 1. The Worker accepts that the amount of compensation awarded by the Rights Commissioner is adequate.
DETERMINATION:
The case comes before the Court pursuant to Section28(1) of the Organisation of Working Time Act, 1997 (the Act)
Background:
The Respondent, Kyle International Transport Limited, employed the Complainant as a Truck Driver from 4th April 2009 to 21st January 2010. The Complainant presented complaints to the Rights Commissioner on 15th March 2010 under the Organisation of Working Time Act, 1997. The Rights Commissioner considered the complaints and issued her decision on 23rd February 2011. She found that the complaints submitted by the Complainant under Sections 11, 14 and 15 of the Act were well founded. She required the Respondent to pay the Complainant compensation in the amount of €5,000. The Respondent appealed this decision to this Court pursuant to Section 28(1) of the Act. The Court received written submissions from both parties and conducted an oral investigation into the complaints on Thursday 30th June 2011. At the appeal the Respondent was represented by Ms. Muireann McEnery, Peninsula Business Services (Ireland) Limited. Mr. Neil Cosgrave, Solicitor, Cosgrave Solicitors represented the Complainant.
Respondent's case:
Ms. McEnery, on behalf of the Respondent, submitted that the Rights Commissioner had made her decision on the basis of a misunderstanding of the true meaning of the tachograph records before her. She submitted that those records vindicate the Respondent's position and should be relied on by this Court.
She further submitted that the Complainant was at all times instructed to comply with all legal requirements including the provisions of the Act. She submitted that the Respondent rejected any suggestion to the contrary as completely untrue. She further submitted that, before the commencement of these proceedings, the Respondent was unaware of the Complainant's regular practice of fraudulently substituting of his own with other drivers' tachograph records.
Complainant's case:
Mr. Cosgrave, on behalf of the Complainant, submitted that the Respondent had not produced records of the Complainant's hours of work despite requests to do so. He said the only record produced before the Rights Commissioner was a breakdown of certain days worked in January 2010.
He further submitted that the Respondent instructed the Complainant to substitute a tachograph disc in the name of another driver in order to enable him to circumvent the driving restriction imposed by the Act. He said this was a widespread practice in the Respondent's company.
Mr. Cosgrave further submitted evidence which he said demonstrated that the Complainant was regularly given inadequate rest breaks, required to work on Sunday without compensation and required to work in excess of an average 48 hours per week contrary to section 11, 14 and 15 of the Act.
Findings of the Court:
The Court finds that the Respondent did not maintain records in the form required by Section 25(1) of the Act. Accordingly, by virtue of the provisions of Section 25(4), the burden of proving compliance with the Act lies with the Respondent.
The Respondent submitted copies of tachograph discs and a breakdown of the number of days worked by the Complainant for each week of his employment. However this breakdown contains no details of the hours worked on each of those days.
Having examined these records the Court finds that they have no probative value for the purposes of establishing compliance with the provision of the Act. Accordingly the Court finds that the Respondent has failed to discharge the obligations placed upon him by virtue of Section 25(1) of the Act.
On this basis and taking into account the submissions made on behalf of the Complainant the Court finds that the complaints made pursuant to Section 11, 14 and 15 of the Act are upheld.
Remedy:
Taking all matters into account including the direction of the ECJ inVon Colson and Kamann v Land Nordrhein-Westfalen[1984 ] ECR 1891 the Court upholds the decision of the Rights Commissioner and awards the Complainant the sum of €5,000.
Determination:
The Court rejects the appeal and upholds the decision of the Rights Commissioner.
Signed on behalf of the Labour Court
Brendan Hayes
2nd August 2011______________________
MG.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.