FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : NATHAN CLARE T/A CLARE HAULAGE (REPRESENTED BY JACQUELINE NIELSEN B.L.) - AND - VAISOTAS BARSTEIGA (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appealing of Rights Commissioner's Decision r-099422-wt-10/EH.
BACKGROUND:
2. The Respondent appealed the Rights Commissioner's Decision to the Labour Court on 11th May, 2011. A Labour Court Hearing took place on 22nd September, 2011. The following is the Labour Court's Decision:
DETERMINATION:
The Complainant brought a complaint before a Rights Commissioner pursuant to the Organisation of Working Time Act 1997 (the Act) alleging breaches of Sections 11, 12, 15 and 17. The Rights Commissioner upheld the complaints and awarded the sum of €7,500. The Employer appealed the decision of the Rights Commissioner.
The Complainant claimed that the Respondent breached the Act, by not affording him his entitlement to the statutory break periods in contravention of Section 11, 12 and by requiring him to work in excess of the maximum weekly hours prescribed by section 15 of the Act. He further complained that the employer had not given him at least 24 hours notice prior to working “additional hours”, in breach of Section 17 of the Act.
The Complainant worked for the Respondent as a haulage driver from 25th July 2009 until 8th July 2010. He referred his claim under the Act to the Rights Commissioner’s Service on 14th September 2011.
Claim under section 11: rest breaks
The Complainant stated that he regularly worked between 60 and 70 hours per week and therefore submitted that he did not receive an entitlement to eleven hours consecutive rest in accordance with the provisions of Section 11 of the Act.
Having examined the records the Court finds that there were nine occasions in the relevant period of the claim when the Complainant did not receive his entitlement under Section 11 of the Act.
Claim under section 12: meal breaks
The Complainant submitted that the Respondent was in breach of Section 12 of the Act. The Complainant accepted that he had been instructed to take meal breaks during the day however, no evidence exists to prove that these breaks were availed of.
The Complainant gave evidence to the Court that he availed of meal breaks each day, ranging from forty-five minutes to one hour per day.
The Respondent disputed the assertion made that the Complainant had not received meal breaks in accordance with Section 12. He stated that the Complainant himself was fully aware of the obligations under RSA rules/regulations to take 45 minutes in respect of every four hours driving.
The Court is not satisfied that the Respondent has produced sufficient evidence to demonstrate compliance with Section 12 of the Act in respect of each day and accordingly must hold that there was a breach of Section 12 of the Act.
Claim under section 15: maximum weekly working hours
The Complainant submitted that he regularly worked hours in excess of 48 hours (on average) as set down in Section 15 of the Act, accordingly he held that the Respondent was in breach of the Act.
Section 15 prescribes that an employer shall not permit an employee to work in excess of 48 hours on average over a reference period of 4 months. The Court has examined the records available in the four months prior to the termination date of the Complainant’s employment.
Having examined these details the Court finds that the Complainant was required to work on average 64.25 hours per week. Therefore, the Court finds that the Respondent was in breach of Section 15 of the Act.
Claim under section 17: notification of additional hours
The Court is satisfied that the Complainant’s contracted hours were as notified to him before his working day. Working hours were dependent on the locations he was required to travel to. The Court was not provided with any evidence to suggest that he was ever required to undertake any additional journeys to his daily contracted hours and consequently, finds that there was no breach of Section 17 of the Act.
DETERMINATION
In all the circumstances of this case, the Court determines that the Respondent must pay the sum of €3,500.00 in respect of the breaches of the Organisation of Working Time Act 1997 and directs the Respondent to pay the Complainant compensation in that amount.
Accordingly, the Decision of the Rights Commissioner is varied.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
14th October, 2011______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.