FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : DUBLIN BUS - AND - DEREK MICHAEL ROTHWELL DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appealing against Rights Commissioner's Decision No: r-090073-wt-10/JC
BACKGROUND:
2. This case concerns an appeal ofRights Commissioner's Decision No: r-090073-wt-10/JC. The Complainant (Derek Michael Rothwell) appealed against the decision of the Rights Commissioner that found in favour of the Respondent company, Dublin Bus.The Complainant is employed as a bus driver and submitted complaints against the respondent to the Rights Commissioner pursuant to Section 27 of the Organisation of Working Time Act, 1997. The Rights Commissioner investigated the complaints and found against the complainant.
On the 18th January 2011, the worker appealed the Rights Commissionerpursuant to Section 28 of the Organisation of Working Time Act 1997. A Labour Court hearing took place on 25th May, 2011. The following is the Court's Determination:
DETERMINATION:
Details of the Complaints:
The Complainant submitted complaints pursuant to Sections 11, 12, 14 and 19 of the Act.
Complaints pursuant to Sections 11 and 12
The Court notes the provisions of S.I Numbers 21/1998 and 817/2004 that exempts the activity in which the complainant is employed from the strict provisions of Sections 11 and 12 of the Act. The exemption however is not absolute. It requires the Respondent to substitute compensatory rest for the strict application of the provisions of the Act. No case was made to the Court that such compensatory rest was not provided in this case. Furthermore the Court finds that the collective agreement approved by the Court pursuant to Section 24 of the Act provides for such compensatory rest.
Accordingly the appeals to the Court made under Sections 11 and 12 of the Act are not upheld.
Complaint pursuant to Section 14
The Complainant submits that he was denied additional payment for working Sundays contrary to Section 14 of the Act.
Section 14 provides
(1)An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely—
- (a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or
(b) by otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances, or
(c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or
(d) by a combinationof two or more of the means referred to in the preceding paragraphs.
The Complainant submitted to the Court that he did not receive a premium for working on Sunday.
The Respondent submitted that payment for Sunday was included in his rate of pay and agreed as part of a collective agreement.
Findings of the Court
The Court is satisfied that the complainant was compensated in his pay for his liability to work on Sunday through the terms of the collective agreement in force at that time.
Determination of the Court:
The Court rejects the Claim and upholds the Rights Commissioner’s Decision.
Complaint pursuant to Section 19
The Complainant submitted that he was not given his annual leave entitlement contrary to the provisions of Section 19 of the Act.
The relevant part of Section 19 provides
- (1)Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—
- (a)4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),
The Complainant submitted that he was not afforded his entitlement to 20 days leave. He further submitted that by his calculation he was contractually entitled to 22 days leave.
The Respondent submitted that the complainant was contractually entitled to 26 days leave in the relevant leave year and that this was available to him to take in accordance with the terms of his contract.
Findings of the Court:
The Court finds that the Respondent was providing the Complainant with more than his statutory entitlement to annual leave.
Determination:
The Court rejects the appeal and upholds the Rights Commissioner’s Decision.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
15th July 2011______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.