FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : MARCHFORD LTD - AND - DARIUSZ OLEJARZ (REPRESENTED BY PCE) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appealing of Rights Commissioner's Decision r-093649-wt-10/TB.
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 3rd February, 2011. The Court heard the appeal on 7th June, 2011, the earliest date suitable to the parties. The following is the Determination of the Court:
DETERMINATION:
The Claimant brought a complaint before a Rights Commissioner pursuant to the Organisation of Working Time Act 1997 (the Act) alleging breaches of Sections 11, and 21. The Rights Commissioner rejected the claim under Section 11 and upheld the complaint under Section 21 and awarded payment of one day’s pay in respect of the public holiday which fell on 17th March 2010.The Claimant appealed the Decision of the Rights Commissioner.
Section 11 Complaint:
Mr. Blazey Nowak, Polish Consultancy Enterprise on behalf of the Claimant submitted to the Court that on two occasions the employer required the Claimant to commence a night shift at 11.00pm after he had finished his duty at 4.00pm that same day. Mr. Novak contended this was in breach of Section 11 of the Act. Furthermore, Mr. Novak submitted that the employer was also in beach of Section 11 when the Claimant was not given 11 consecutive hours break at the end of one shift and before the commencement of another shift, when the late shift changed over from its 4.00pm to 11.00pm roster to an early roster commencing at 7.00am to 4.00pm.
Mr. S�an Kealy from the Company was of the view that there may have been two occasions when the Claimant did not have receive his entitlement to 11 consecutive hours break in accordance with Section 11 of the Act. He stated to the Court that this situation occurred due to unforeseen circumstances where there was a necessity for the Claimant to fill in for an absent colleague on those occasions and the Claimant agreed to carry out the duties. However, Mr. Kealy held that the Claimant had received appropriate compensatory rest in accordance with the Act.
Having examined the very detailed records supplied by the Company the Court finds that there was in fact no breach of the Act during the relevant period covered by the claim. On each occasion that the Claimant worked the night shift he was off the following day. In those circumstances the Court finds that there was in fact no breach of the Act.
Mr. Kealy submitted to the Court that the break between shifts during shift changeover does not contravene Section 11 due to the exemption provided by Section 4 of the Act.
Section 11 provides:
- “An employee shall be entitled to a rest period of not less than 11consecutive hours in each period of 24 hours during which he or she works for his or her employer.”
- (1) Without prejudice to section 6, section 11 or 13 or, as appropriate, both these sections shall not apply, as respects a person employed in shift work, each time he or she changes shift and cannot avail himself or herself of the rest period referred to in section 11 or 13 or, as the case may be, both those sections.
Section 6 stipulates that where these exemptions are allowed compensatory rest must be provided. The employer must ensure that the employee has available a rest period and break that, in all the circumstances, can reasonably be regarded as equivalent to the afore-mentioned rest period and break.
S.I. No. 44 of 1998,The Code of Practice on Compensatory Rest, provides guidance as to what may be an appropriate rest period. Regulation 3.2 of S.I. 44 of 1998 states that equivalent compensatory rest should be given as soon as possible after the statutory rest has been missed.
The employer supplied the Court with detailed records of the Complainant’s work record, including the times he clocked in and out for duty. Having examined the records and considered the submission of both parties the Court is satisfied that the failure to avail of the rest periods referred to in Section 11, on the dates claimed, arose directly out of the change of shift and accordingly the employer can apply Section 4 in this case. Furthermore, the Court is satisfied that the records show that he availed of compensatory rest in accordance with the Code of Practice.
Section 21 Complaint:
Mr. Novak submitted that as the Claimant’s employment ended on 14th March 2010 and he should have been entitled to benefit from the public holiday which fell on 17th March 2010. Accordingly, he submitted that the employer was in breach of Section 21 in not providing him with compensation in respect of the public holiday on the termination of his employment.
Mr. Kealy submitted to the Court that as the Claimant resigned his employment with effect from Sunday 14th March 2010, he was not in employment in the week ending before the public holiday, which occurred on Wednesday 17th March 2010.
An entitlement to compensation on cesser of employment for a public holiday arises by virtue of Section 23 of the Act. In accordance with Section 23(2) a public holiday entitlement accrues where an employee ceases to be employed during the week ending on the public holiday and has the requisite hours worked in the preceding 4 weeks.
In this case the Court is satisfied that the Claimant ceased employment “during the week ending on the public holiday”. The public holiday arose on Wednesday and the week before that commenced on Thursday 11th March, so the Claimant accrued an entitlement as his employment terminated within that week.
Determination
The Court has considered the Claimant's appeal and concurs with the findings of the Rights Commissioner that he is entitled to one day’s public holiday entitlement (valued at €76.00) and the Court determines that the Claimant should be compensated by the payment of €76.00 in respect of that breach.
Therefore the Court upholds the Rights Commissioner's decision. The appeal fails.
Signed on behalf of the Labour Court
Caroline Jenkinson
24th June, 2011______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.