FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : CLAREMORRIS TOURISM LTD (REPRESENTED BY JOHN FLANNERY & ASSOCIATES) - AND - EWA MATEJA (REPRESENTED BY MS MAJDALENA MAJEWSKA) DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Mr Nash |
1. Appeal of Rights Commissioner's Decision r-083340-wt-09/SR.
BACKGROUND:
2. 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 17th August, 2010. The Court heard the appeal on 10th March, 2011, the earliest date suitable to the parties. The following is the Determination of the Court:
DETERMINATION:
The case comes before pursuant to Section 28(1) of the Organisation of Working Time Act 1997 (the Act) by way of an appeal of a Rights Commissioner’s decision that upheld a complaint that, Claremorris Tourism ltd. (the Respondent) had failed to afford Ms Ewa Matejo, (the Complainant), rest breaks from work contrary to Section 12(2) of the Act.
Background:-
The Complainant commenced working for the Respondent on 21st July 2007 as an Accommodation Assistant at a weekly rate of €354.33 per week. The Complainant ceased working for the Respondent on 23rd September 2009. She normally worked between the hours of 9:00 a.m. and 5:00 p.m., however these hours varied from time to time between the hours of 8:00 a.m. and 6:00 p.m.
Complaint: -
The complainant had alleged before the Rights Commissioner that though she had worked for a period time in excess of 6 hours she had not always been allowed a break of at least 30 minutes on all such occasions.
Respondent’s position: -
Mr John Flannery, on behalf of the Respondent, rejected the complaint. He submitted that at all times the Complainant was allowed to take her statutory breaks in accordance with the terms of her contract of employment and of the Organisation of Working Time Act 1997. He submitted detailed time sheets in support of the this submission.
The Law:-
The relevant section of the Organisation of Working Time Act 1997 provides as follows: -
- 12.—(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).
(3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour).
(4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2).
Findings of the Court: -
The Court examined the documentation provided to it by the Respondent. These records show that the Complainant, contrary to the provisions of Section 12(2) of the Act worked for in excess of 6 hours on at least 11 occasions, without a break of at least 30 minutes, in the two months leading up to the termination of her employment. The Court brought a number of these contraventions of the Act to the attention of the Respondent in the course of the hearing. The Respondent admitted the breaches to the Court. The Court has also noted some inconsistent and contradictory information in the documentation provided.
Determination: -
On the basis of the evidence before it, the Court awards the Complainant the sum of € 4,000 for the breach of her statutory entitlements under Section 12(2) of the Act. The level of compensation awarded by the Court is intended to meet the criteria set out by the ECJ in the case of Sabine Von Colson and Elisabeth Kamann v Land Nordrhein-Westfalen [1984 ECR 1891].
The Decision of the Rights Commissioner is varied accordingly.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
25th March, 2011______________________
Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.