FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : NURENDALE LTD T/A PANDA WASTE (REPRESENTED BY SHEENA MC DERMOTT SOLICITORS) - AND - AUGUSTUS SAMAITIS (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Ms Ni Mhurchu |
1. Appeal of Rights Commissioner's Decision R-093840-WT-10/JW.
BACKGROUND:
2. The Worker and the Employer 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 1st April, 2011. The Court heard the appeal on the 17th November, 2011, the earliest date suitable to the parties.The following is the Determination of the Court:
DETERMINATION:
The Complainant brought a complaint before a Rights Commissioner pursuant to the Organisation of Working Time Act 1997 (the Act) alleging breaches of Sections 11, 12, 13, 15 and 17. The Rights Commissioner upheld the complaints under section 11, 12, 13 and 15 and made no decision on section 17 and awarded the sum of €2,000.00. The Complainant appealed the quantum of the award decided by the Rights Commissioner, the Employer appealed the decision.
The Complainant instituted proceedings under Section 27(2) of the Act on 3rdMarch 2010 before a Rights Commissioner. He claimed that the employer had breached the Act, by not providing him with at least 11 hours consecutive daily rest, by not providing him with appropriate meal breaks each day and by not providing him with his statutory weekly rest periods. Furthermore, he was required to work in excess of an average of 48 hours per week in breach of the statutory limit and by not providing him with 24 hours notice prior to working “additional hours”.
The Complainant told the Court that he was rostered to work from 5.00am until 4.00pm each day five days per week and on some occasions he was requested to work extra hours to cover for another colleague. He was also required on some occasions to work on Saturdays from either 6.00am or 8.00am until 2.00pm. He stated that he could only avail of one meal break per day, which ranged from 30 to 35 minutes.
The Employer stated that it was up to the Complainant to avail of his own meal breaks and when he picked up his pay packet that he was required to sign a form indicating that he has taken his meal breaks in accordance with the provisions of the Act. The Employer contended that it was the Complainant who sought extra hours of work and that he never made any complaints concerning the number of hours he worked.
While the Employer accepted that there had been a breach of section 15 of the Act in that the Complainant was required to work in excess of 48 hours per week it denied the other allegations. The Employer gave details to the Court of the measures it has taken to ensure that there are no further breaches of the Act; to ensure that employees are fully informed of their entitlements under the Act and to ensure that meal breaks and hours of work are fully recorded in compliance with the Act.
Having examined the details provided to the Court and having considered the evidence given by both the Complainant and by members of management the Court is satisfied that there were a small number of occasions within the relevant period when the Complainant did not receive his daily rest and consequently the Court finds that the employer was in breach of section 111 of the Act.
The Court is not satisfied that the records produced confirm that the employer fulfilled its obligation to ensure that the Complainant received his entitlements to meal breaks, and accordingly the Court finds that there was a breach of section 12 of the Act.
The Court is satisfied from the details supplied that the Complainant was provided with adequate weekly rest periods and accordingly there was no breach of section 13 of the Act.
The Court notes that the employer admitted that the Complainant worked in excess of an average of 48 hours in the reference period and consequently accepted that there was a breach of section 15 of the Act.
The Court is not satisfied that the Complainant was provided with 24 hours notice prior to working “additional hours” and accordingly finds that there was a breach of section 17 of the Act.
The Court has considered the joint appeals of the Rights Commissioner's Decision and concurs with the findings of the Rights Commissioner under section 11, 12 and 15. It does not concur with his finding under section 13 and finds that there was a breach of section 17. In all the circumstances of this case the Court does not find grounds to award a higher amount and accordingly upholds the Rights Commissioner's decision.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
6th December 2011______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.