FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : MCR PERSONNEL LIMITED - AND - PIOTR PIENSZKE (REPRESENTED BY POLISH CONSULTANCY ENTERPRISE) DIVISION : Chairman: Mr Duffy Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appeal of a Rights Commissioner's Decision R-100009-WT-10/EH.
BACKGROUND:
2. The case before the Court concerns a claim by the Worker in relation to an appeal of a Rights Commissioner's Decision. The Worker claimed that during the time of his employment the Employer breached several sections of the Organisation of Working Act, 1997. The matter was referred to a Rights Commissioner for investigation. The Rights Commissioner, in part, found in the Worker's favour and awarded him compensation in the amount of €2,000. The Worker appealed the Rights Commissioner’s Decision to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997 on the 24th March, 2011. The Court heard the appeal on the 4th August, 2011 the earliest date suitable to the parties.The following is the Court's Determination:
DETERMINATION:
- This is an appeal by Piotr Pienszke (the Claimant) against the decision of a Rights Commissioner in his claim against his former employer MCR Personnel Limited (the Respondent) under the Organisation of Working Time Act 1997 (the Act). The Rights Commissioner found that the Respondent had contravened the Act in a number of respects and awarded him compensation in the amount of €2,000. The Claimant had complained that the Respondent contravened s.17 of the Act by not providing him with adequate notice of a requirement to work overtime. The Rights Commissioner found that this complaint was not well founded.
The Claimant appealed against the decision of the Rights Commissioner on quantum and also against the dismissal of his complaint in relation to s. 17 of the Act.
Section 17(1) of the Act provides: -- 17.—(1) If neither the contract of employment of the employee concerned nor any employment regulation order, registered employment agreement or collective agreement that has effect in relation to the employee specifies the normal or regular starting and finishing times of work of an employee, the employee's employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in each week that he or she proposes to require the employee to work, of the times at which the employee will normally be required to start and finish work on each day, or, as the case may be, the day or days concerned, of that week.
The issue arising on this aspect of the case is whether the Respondent ‘required’ the Claimant to work additional hours. It is not contested that the Claimant did in fact work overtime regularly but the Respondent contends that it was at all times voluntarily worked.
The Court heard evidence from the Claimant on this point. In his evidence the Claimant told the Court that he could have refused to work overtime and sometimes did refuse to do so. On a plain reading of the subsection it is intended to cover a situation where a workers is obliged to work the hours directed by the employer. In this instance the Claimant had regular working hours and it appears that overtime working was voluntary. Accordingly the Court is satisfied that the Respondent did not contravene s.17 in relation to the Claimant.
The Court is further satisfied that, having regard to all the circumstances of the case, the quantum of compensation awarded by the Rights Commissioner is adequate.
In these circumstances the Decision of the Rights Commissioner is affirmed an the appeal is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
15th August 2011______________________
SCChairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.