FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : BRASSERIE GASTRO PUB 15 LIMITED - AND - STILIYAN KYOSEV (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner's Decision r-089894-wt-10/DI.
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 9th December, 2010. The Court heard the appeal on 5th April, 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 12, 14, 19 and 21. The Rights Commissioner held the complaints failed for lack of prosecution when the Claimant failed to attend the hearing.
The Claimant appealed the Decision of the Rights Commissioner. He attended the hearing of the appeal before the Labour Court and was represented by Ms. Julienne Paye, Solicitor, of Richard Grogan & Associates, Solicitors.
At the outset of the hearing Ms. Paye withdrew the claim alleging breach of Section 14 of the Act.
The Claimant was employed as a waiter in the Employer’s restaurant from 1st September 2009 until 19th December 2009. He submitted his claim under the Act to the Rights Commissioner on 2nd February 2010.
The Employer accepted that there was an outstanding entitlement to both annual leave and public holiday. He calculated that entitlement at €295.65 and was fully prepared to pay this amount to the Claimant. He informed the Court that such monies would have been paid to the Claimant at the time they were due, however, the Claimant left in such a hurry that the Employer did not get a chance to pay him. The Employer told the Court that he had a cheque prepared to give him both at the Rights Commissioner’s hearing and at the hearing of the appeal before the Court. Ms. Paye did not dispute this calculation and accepted that this amount was outstanding in respect of the Claimant’s entitlements under Sections 19 and 21 of the Act.
Therefore, the Court investigated the claims under Section 12 of the Act. Ms. Paye submitted that the Claimant did not receive his entitlement to meal breaks in accordance with the Act. Ms. Paye told the Court that the Claimant worked on a part-time basis, mostly at weekends. His roster commenced either at 5pm or 6pm and continued until closing time, normally between 2am and 3am. She said that the Claimant normally received a thirty-minute break within the first hour of his roster when he was provided with a meal.
The Employer told the Court that it was the normal practice to allow employees take a thirty-minute meal break within the first hour or hour-and-a-half of their roster and to provide them with a fifteen-minute break at around 10pm. He told the Court that the Claimant was treated no differently. However, at the time of the alleged contravention, while he keep a record of hours of work, he did not keep a record of breaks taken during working hours. He told the Court that he has since rectified that situation.
The Claimant concurred with the details regarding the thirty-minute break but disputed the assertion that he could avail of the fifteen-minute break late into his roster.
The Law Applicable
- 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).
Findings of the Court:
There is no dispute that the Claimant received a break of at least 30 minutes within the first hour or so of his roster. This break always finished by 6.30pm at the latest. Accordingly, in accordance with Section 12 (2) of the Act, the Claimant was entitled to have availed of a further 30-minutes break by 12.30am at the latest, which break may include the 15-minutes break referred to in Section 12(1). The Court is satisfied from the evidence that the Claimant received a 15- minute break around 10.00pm, however, the Court finds that the Employer was in breach of the Act by not ensuring that he received a further 15-minute break before 12.30am as required by Section 12(2). On that basis the Court determines that the Respondent should pay the Claimant a sum of €200 in compensation for the breach incurred.
Accordingly, the Court finds that the Respondent contravened Sections 12, 19 and 21 of the Act. The Court determines that €200 compensation should be paid to the Claimant in respect of the breach of Section 12 and furthermore the outstanding monies in respect of annual leave and public holidays due to the Claimant in the amount of €295.65 should also be paid.
Therefore, the Court determines that the Claimant should be paid a total of
€495.65 within six weeks of this Determination
The Decision of the Rights Commissioner is varied accordingly.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
30th May, 2011______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.