FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : BARLOW PROPERTIES LIMITED (REPRESENTED BY J W O'DONOVAN SOLICITORS) - AND - BOZENA CHAMARA DIVISION : Chairman: Mr Hayes Employer Member: Ms Doyle Worker Member: Mr Shanahan |
1. Appealing against a Rights Commissioner's Decision R-088568-WT-09/JOC
BACKGROUND:
2. The worker was employed from August, 2005, to December, 2009. Her case is that she was not provided with proper rest breaks or premium payment for Sunday work and Public Holidays under the Organisation of Working Time Act, 1997. The Company's case is that she was given the correct amount of breaks although some might have been short e.g 10 minutes instead of 15 minutes; she was provided with free meals for all days that she worked instead of payment on Sunday, and she was given a paid day-off in lieu of working Public Holidays. Both parties supplied details to the Court.
The case was referred to a Rights Commissioner whose decision was as follows:
"Based on the uncontested evidence I find the claimant's case to be well founded. I award him €1500 in compensation."
The worker appealed the decision to the Labour Court on the 18th August, 2010, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 4th November, 2011, in Cork. The following is the Court's determination:
DETERMINATION:
The case comes before the Court pursuant to Section 28(1) of the Organisation of Working Time Act, 1997.
Background
The Complainant worked for the Respondent from the 24th August 2005 until the 11th December 2009. She was paid €360 per week. The Complainant submitted that, contrary to the provisions of Section 14 of the Act, she was not paid any premium pay for working Sunday, was not, contrary to Section 12 of the Act, provided with statutory rest breaks in the course of her daily work and that contrary to the provisions of Section 21 of the Act was not properly compensated for time worked on Public Holidays.
In response the Respondent, represented by Mr. Jerome O'Sullivan Solicitor, submitted that the complainant,
1. was allowed a 10 - minute break after working 4 hours and 30 minutes.
2. had access to free meals whilst at work and that this discharged the employer's obligations under Section 14 of the Act,
3. was granted a paid day off within a month in respect of all public holidays on which she was required to work.
Findings of the Court
The Respondent acknowledged that, contrary to the provisions of Section 25 of the Act, it did not maintain records in the prescribed form. Accordingly, the burden of proving compliance with the provisions of the Act lies with the Employer.
Breaks:
The Court notes that Section 12 (1) of the Act provides that
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.
By its own admission the Respondent admitted that it did require the complainant to work for a period of more than 4 hours and 30 minutes without allowing her a break of at least 15 minutes. Instead it submitted that it had allowed the complainant a break of 10 minutes after such a period of work.
Accordingly, the Court finds that the complaint is well founded.
Payment for Sunday Work.
Section 14 of the Act provides
14.-(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 combination of two or more of the means referred to in the preceding paragraphs.
The Court finds that the Respondent's arrangements for providing the Complainant with access to free meals on days on which she was at work does not meet the requirements of Section 14 of the Act.
Accordingly, the Court finds that this complaint is well founded.
Public Holiday Entitlements.
The Court notes that the Respondent presented records to show that the Complainant was granted a paid day off within a month in respect of each of the Public Holidays on which she worked. The Complainant acknowledged that this was correct.
Accordingly, the Court finds that this complaint is not well founded.
Determination.
The Court finds that the complaints under Section 12 and 14 of the Act are well founded. The Court awards the Complainant the sum of €2500 as compensation for the breaches of the Complainant's rights under the Act.
The Right's Commissioner's Decision is varied accordingly.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
15th November, 2011______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.