FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : TERMINAL FOUR SOLUTIONS LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - YINKA RAHMAN DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appealing against a Rights Commissioner's Decision r-090719-wt-10/DI.
BACKGROUND:
2. The Company provides enterprise web content management systems and solutions to medium and large sized organisations. The Complainant, Ms Yinka Rahman, worked as a Project Co-ordinator for Terminal Four Solutions Limited, the Respondent, from 18th August 2008 until 25th November 2009. Her normal hours of work were 9.00 a.m. to 5:30 p.m. Monday to Friday.
On March 19th 2010, Ms Rahman lodged a complaint with the Labour Relations Commission alleging breaches of Section 11, 12 and 13 of the Act by the Respondent in respect of her employment with Terminal Four Solutions Ltd. The Respondent rejected the complaints as untrue and unfounded.
A Rights Commissioner conducted an investigated into the complaints made. He rejected the complaints in respect of Sections 11 and 13 of the Act. He upheld the complaint under Section 12 of the Act and awarded the Complainant €1,750.00 in compensation for the denial of her rights under that Section of the Act.
It is this Decision that was appealed by the Respondent to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997 on the 12th April, 2011. The Court heard the appeal on the 13th July, 2011, the earliest date suitable to the parties.
EMPLOYEE'S ARGUMENTS:
3. 1. The general practice was that Employees were free to take breaks as and when it was practical to do so. However, it was frowned upon if you took breaks when you were working on something important.
2. During my time working with the Company I was often required to work excessive hours without taking breaks.
COMPANY'S ARGUMENTS:
4. 1. The period from 20th September, 2009 to 25th November, 2009 can only be considered in this case as only contraventions that occurred during the six months prior to the referral which is dated 19th March, 2010 are at issue. At no stage during her employment did the Claimant raise any grievance that she was not getting her breaks as per Section 12 of the Act.
2. The Claimant referred numerous cases under various pieces of legislation. The records show that some of the allegations are untrue, this calls into question the veracity of her claim under Section 12 of the Act.
DETERMINATION:
This case comes before the Court pursuant to Section 28(1) of the Organisation of Working Time Act 1997 (the Act)The Labour Court considered the appeal on 13th July in accordance with the provisions of Section 28(1) of the Act.
The Law
Section 11 provides
- An employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer
Section 12 provides
12(1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes
(2)An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1)
(3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour)
(4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2)
13.—(1) In this section “daily rest period” means a rest period referred to insection 11
(2) Subject to subsection (3), an employee shall, in each period of 7 days, be granted a rest period of at least 24 consecutive hours; subject to subsections (4) and (6), the time at which that rest period commences shall be such that that period is immediately preceded by a daily rest period
(3) An employer may, in lieu of granting to an employee in any period of 7 days the first-mentioned rest period in subsection (2), grant to him or her, in the next following period of 7 days, 2 rest periods each of which shall be a period of at least 24 consecutive hours and, subject to subsections (4) and (6)
a) if the rest periods so granted are consecutive, the time at which the first of those periods commences shall be such that that period is immediately preceded by a daily rest period, and
b) if the rest periods so granted are not consecutive, the time at which each of those periods commences shall be such that each of them is immediately preceded by a daily rest period
(4) If considerations of a technical nature or related to the conditions under which the work concerned is organised or otherwise of an objective nature would justify the making of such a decision, an employer may decide that the time at which a rest period granted by him or her under subsection (2) or (3) shall commence shall be such that the rest period is not immediately preceded by a daily rest period
(5) Save as may be otherwise provided in the employee's contract of employment
(a) the rest period granted to an employee under subsection (2), or(b) one of the rest periods granted to an employee under subsection (3) shall be a Sunday or, if the rest period is of more than 24 hours duration, shall include a Sunday
Section 25 of the Act provides
25.—(1) An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this Act are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making
Complainant’s position
(2) The Minister may by regulations exempt from the application of subsection (1) any specified class or classes of employer and regulations under this subsection may provide that any such exemption shall not have effect save to the extent that specified conditions are complied with
(3) An employer who, without reasonable cause, fails to comply with subsection (1) shall be guilty of an offence
(4) Without prejudice to Subsection (3), where an Employer fails to keep records under Subsection (1) in respect of his or her compliance with a particular provision of this Act in relation to an Employee, the onus of proving, in proceedings before a Rights Commissioner or the Labour Court, that the said provision was complied with in relation to the Employee shall lie on the Employer
Complainant’s case
The Complainant submitted that in the course of her employment with the respondent she was often required, contrary to Section 12 of the Act, to work in excess of 4.5 hours without a break. She said that Employees were free to take breaks but it was frowned upon if one did so whilst working on an important task.
She submitted that she was required to travel long distances to meet clients and that time spent travelling to and from such meetings was not considered working time. She said this travel regularly resulted in her not being in a position to avail of her daily rest period of 11 hours between successive shifts contrary to Section 11 of the Act.
Respondent’s position
The Company policy on breaks was that all staff were entitled to a 45 minute break for lunch. This policy was outlined in Complainant’s contract of employment and in the Office Procedures Manual that was supplied to all staff in the Company.
The Company had a relaxed policy towards staff taking breaks. A fully equipped kitchen was provided and there was in practice no restriction on staff going to the kitchen to make tea or coffee etc at any time during the day.
The Complainant kept records of the time she spent on company assignment that showed she took her lunch break every day and indeed exceeded the 45 minute break on a regular basis.
These records do not record the short tea and coffee breaks that the Complainant regularly availed of. In this regard Ms Laura Murphy, the Complainant’s manager, told the Court that she distinctly remembers the Complainant leaving her desk to take tea/coffee breaks during the day and to take her lunch at a time of her own choosing each day.
Whilst the Employer did not keep records in the format required by Section 25 of the Act the evidence available to the Court is sufficient to discharge the burden of proof of compliance with the Act placed on the Employer by that Section.
Findings of the Court
The Respondent has admitted that it did not, contrary to Section 25 of the Act, keep records in the prescribed form “as will show whether the provisions of this Act are being complied with in relation to the employee”
Consequently, pursuant to Section 25 (4) of the Act “the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.”
The Court finds that the records of work performed by the complainant submitted to the Court by the Employer are not sufficient to discharge the onus of proving compliance with the provisions of the Act. Those records were
•not designed to record the Complainant’s time at work
•are not consistent with other records of the Employees movements provided to the Court by the Employer
•not signed or otherwise approved by the Respondent
•internally inconsistent in some respects
Consequently they cannot be relied upon to prove compliance with the provisions of the Act.
The Court further finds that the evidence by Ms Murphy was not sufficiently precise to enable discharge the obligation of proving compliance with the provisions of the Act.
The Court finds that the evidence of the Complainant regarding the alleged breaches of Sections 11 and 13 of the Act established no prima facie case for consideration by the Court.
Section 11
The Court accepts the evidence of the Company that there was no occasion on which the Complainant was denied her entitlement to 11 consecutive hours rest in any period of 24 hours. The one occasion contended for by the Complainant did not fall within the statutory time limit for bringing a complaint pursuant to Section 11 of the Act.
Section 13
The Complainant told the Court that she was not required to work weekends. Consequently no breach of Section 13 of the Act arises in this case.
Section 12
The Court finds that on the balance of probabilities there were occasions on which the complainant was not in a position to take her rest breaks pursuant to Section 12 of the Act. The Court further finds that the burden of proving compliance with this Section of the Act has not been discharged by the Respondent either by way of the documentation provided to the Court or by the submissions made to it on the Respondent’s behalf or by the evidence presented to it by the company representatives Ms Dempsey and Ms Murphy.
Accordingly the Court upholds the complaint under Section 12 of the Act.
Remedy
Taking all of the evidence into account and the Decision of the ECJ in relation to the level of award that should be made in cases where a personal right established under a Directive of the European union has been denied to an individual, cf(C – 14/83 Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1891),Court finds that the Rights Commissioner’s Decision in this case should be upheld.
Signed on behalf of the Labour Court
Brendan Hayes
2nd August, 2011______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.