FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : FS SUB HOLDINGS LTD. - AND - DOVILE VAIVADAITE (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Mr Nash |
1. Appeal of Rights Commissioner's Decision r-090925-wt-10/RG.
BACKGROUND:
2. 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 27th October, 2010. The Court heard the appeal on 21st June, 2011, the earliest date suitable to the parties. The following is the Determination of the Court:
DETERMINATION:
Background
The case comes before the Court pursuant to Section 28(1) of the Organisation of Working Time Act 1997 (the Act).
The Complainant worked for the Respondent from October 2008 until December 2009. She worked various different shift patterns each week. One of the shift patterns required her to commence work at noon and finish work at 10pm according to the Complainant. The Respondent disputed that the Complainant was ever required to work beyond 9:20pm. The Complainant submitted a complaint to the Rights Commissioner to the effect that when working on such long shifts she was allowed a 30-minute break after working six hours but she was not, contrary to Section 12(1) of the Act, afforded a 15-minute break after working four hours and 30 minutes on said shifts. She further complained that she had been underpaid for her annual leave in 2009. The Rights Commissioner, having heard both sides in the case, decided as follows
- “ I declare the complaint is well founded in part. I order the Employer to pay the Claimant compensation of €600 within six weeks of the date of the Decision.”
The Complainant appealed the level of compensation awarded by the Rights Commissioner to the Labour Court pursuant to Section 28(1) of the Act.
Working Time Act 1997
Section 12 provides
- (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).
Position of the parties
Mr Grogan, submitted that the Complainant was, contrary to Section 12(1) of the Act, regularly denied access to a 15-minute break after working four hours and 30 minutes for the Respondent. He submitted that the Respondent was obliged to record the Complainant’s attendance at work and to ensure that she could avail of her statutory entitlements to all of the breaks provided for in the Act. He submitted that the Respondent had failed to maintain or produce to the Rights Commissioner the relevant work records and accordingly the onus of proving compliance with the Act rested with the Respondent. He submitted that there was a shortfall in the Complainant’s holiday pay in the amount of €281.77 fo the 2009 leave year. Finally, he submitted that that the Rights Commissioner had failed to make an award that could be regarded as proportionate or persuasive or dissuasive of an employer not paying appropriate holiday pay.
The Respondent accepted that there had been an under payment of holiday pay to the Complainant for the 2009 leave year. He submitted that this was an oversight that had not been brought to his attention before the complaint was lodged with the Rights Commissioner. He submitted that the Complainant was afforded all of the breaks provided for in the Statute. He submitted that the Company Handbook, which was given to all employees, identified the breaks to which the Complainant was entitled and set out a procedure to be followed in the event that the she was not given access to such breaks. He submitted that the Complainant never made a complaint under that procedure. He further submitted that the Complainant’s place of work was located inside a shopping centre that closed at 9pm on Thursday and Friday each week. Cleaning of the premises took place immediately after 9pm and all staff were off site by 9:15pm. On this basis he submitted that the Complainant was never required to work until 10pm on any day of the week. He submitted that the Complainant smoked and regularly took breaks during the working day. These varied in length but sometimes were as long as 15 or 20 minutes duration. He submitted that the Company maintained attendance records and that all employees were required to clock in and out for all breaks. He submitted that this requirement was not always met and the records were not complete. He further submitted that the records for the period of the Complainant’s employment had been deleted from the computer system.
Ms Katarina Kiklicova gave evidence to the Court that she worked for the Respondent in the same capacity as the Complainant and regularly worked on the same shift as her. She said that her employer gave her all of her breaks each day. She said that the Complainant regularly took smoke breaks in the course of her daily shift. Some of these breaks could last for as long as 30 minutes each time and she sometimes took up to five such breaks on a long shift. She said that this could amount to one-and-a-half to two-hour of breaks per day in addition to the half-hour break to which she was entitled after six hours work. She said that the shop closed to the public at 9pm on late night opening nights and that all staff were finished cleaning between 9:05 and 9:20pm on such nights. She said that no one was ever required to work until 10:00pm.
Findings of the Court
The Court finds that the Complainant was not paid her full statutory leave entitlement for leave year 2009. The Court finds, on the evidence presented and despite the absence of records to that effect, that the Complainant was, on the balance of probabilities, allowed the breaks to which she was entitled.
Decision
The Court upholds the decision of the Rights Commissioner. The appeal is dismissed.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
1st July, 2011______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.