FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : TIFCO LTD T/A CROWNE PLAZA BLANCHARDSTOWN (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - DAWID SMIETANA (REPRESENTED BY PCE) DIVISION : Chairman: Mr Hayes Employer Member: Ms Doyle Worker Member: Ms Ni Mhurchu |
1. Appeal against a Rights Commissioner's Decision No. R-092643-WT-10/GC.
BACKGROUND:
2. The Worker concerned was employed by the Company from 6th October 2008, initially as a member of the Bar Staff. In December 2009 he was promoted to the position of Bar Supervisor. In May 2010 the Worker returned to the position of Senior Bar Person. His employment ceased in August 2010.
The complaints before the Court relate to the period when the Worker held the position of Bar Supervisor and concern issues around rest breaks, Sunday working, daily rest breaks and overtime.
The matters were referred to a Rights Commissioner for investigation. His findings issued on the 24th January 2011 in which he found in favour of the Worker with regard to a comlaint under Section 12 of the Organisation of Working Time Act, 1997 concerning the issue of rest breaks. He required the respondent Company to pay the Worker €750.00 in compensation.
The Worker appealed the Rights Commissioner's Decision in its entirety to the Labour Court on the 3rd February 2011, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. The Labour Court hear the appeal on the 7th June 2011.
WORKER'S ARGUMENTS:
3. 1. The Worker maintains that he was not always afforded rest periods as required by Section 12 of the Act and that these breaches continued until May 2010.
2. The Worker contends that his employment was regulated by the Employment Regulation Order (ERO) for the Hotels industry and that he should have had a day off every second Sunday.
3. The Worker further maintains that he was permitted to work in excess of 48 hours per week and was also required to work overtime on many occasions without receiving sufficient notification.
COMPANY'S ARGUMENTS:
4. 1. The Company maintains that the Worker's contractual rest entitlements were a 15 minute paid rest break and a 30 minute unpaid break to be taken within an eight-hour shift and that the Worker was fully aware of his rest break entitlements through his induction.
2. Sunday working is an essential element of the hotel industry. The Worker's contract specified Sunday working in accordance with Section 13(5) of the Organisation of Working Time Act, 1997.
3. The Company maintains that the Worker never notified the hotel during the course of his employment as to any specific difficulties which he was experiencing in relation to Sunday working or his Sunday premium.
DETERMINATION:
The case comes before the Court pursuant to Section 28(1) of the Organisation of Working Time Act 1997 (the Act) by way of an appeal by the Complainant Dawid Smietana against a decision of the Rights Commissioner dated 24 January 2011.
Background
TIFCO Ltd t/a Crowne Plaza Hotel Blanchardstown (the Respondent) is a four star hotel situated in the suburbs of Dublin. It consists of 188 bedrooms and at the time of the hearing of the case employed 120 staff. The hotel first opened on October 1 2008.
The Complainant commenced employment with the hotel in October 2008 as a full time Bartender. On December 14th 2009 the Claimant was appointed to the position of Bar Supervisor on a full time contract. In May 2010 the Claimant returned to the role of Senior Bar person.
The complaints before the Court relate to the period when the Complainant was employed as a Bar Supervisor. There were no complaints regarding the Organisation of Working Time Act 1997 in the period when the Complainant was otherwise employed by the Respondent.
Complaints were submitted under Sections 11, 12, 13, 15, 17 and 21 of the Act.
The Rights Commissioner met with the parties on two occasions 28th September and 15th November 2010. The Commissioner upheld the complaint under Section 12 of the Act and awarded the complainant €750.
That decision was appealed to the Labour Court.
The Court dealt with each of the complaints in turn.
Preliminary matter
Respondent’s Case
The Respondent submitted that the Statutory Instrument entitled The Organisation of Working Time (General Exemptions) Regulations (SI 21/1998) applied in this case. SI 21/1998 exempts certain activities from the strict application of certain provisions of the Act. The Court’s attention was drawn to Regulation 3 of the Statutory Instrument which states
- Without prejudice to Regulations 4 and 5 of these Regulations and subject to the subsequent provisions of this Regulation, each of the activities specified in the Schedule to these Regulations is hereby exempted from the application of Sections 11,12,13 and 16 of the Act.
Tourism is one of the specified activities.
Accordingly the Respondent submitted that the complaints made pursuant to Sections 11, 12 and 13 were not properly before the Court.
Complainant’s case
In response the Complainant referred the Court to regulation 3(2) of SI 21/1998 that provides:
- 3. (1) Without prejudice to Regulations 4 and 5 of these Regulations and subject to the subsequent provisions of this Regulation, each of the activities specified in the Schedule to these Regulations is hereby exempted from the application of sections 11, 12, 13 and 16 of the Act.
(2) The exemption shall not, as respects a particular employee, apply in relation to
- (iii) falls within a class of employee in relation to which a Joint Labour Committee (within the meaning of the Industrial Relations Acts, 1946 to 1990) may perform functions under those Acts,
The Complainant submitted that his employment was subject to the provisions of the Employment Regulation Order governing the terms and conditions of employment of certain hotel staff (SI 359/2009) and on that basis the Complainant submitted that the exemption in respect of Sections 11,12,13 or 16 of the Act do not apply in this case.
Regulation 6 of SI 21/1998 states:
6. Nothing in Regulation 4 or 5 of these Regulations shall prejudice a provision or provisions of a more beneficial kind to the employee concerned which is or are contained in
(b) a registered employment agreement, or
(c) an employment regulation orderThe Complainant submitted that he came within the scope of that section as his employment was subject to the provisions of SI 359(2009), the relevant ERO for the Hotel industry. On this basis he referred the Court to the provisions of Section 1 of the said ERO entitled 'Normal Working Hours' and specifically to subsection 2 thereof which states:
- During the off-season the normal working fortnight shall be 10 days, calculated on the basis of alternative Sundays off.
The “Season” means the period commencing on the Sunday before Easter Sunday and ending on the last Sunday in September.
He further referred the Court to Section 6 of the ERO dealing with Breaks which states:
- (iii) No adult worker shall be required to work continuously for more than 4 and a half hours without a break of at least 15 minutes, or for more than 6 hours without a break of at least 30 minutes.
The Complainant also drew the Court's attention to Section 43 of the Industrial Relations Act 1946 which states:
- (3) If a contract between a worker (being a worker to whom an employment regulation order, which fixes conditions of employment, applies) and his employer provides for conditions of employment (in this subsection referred to as the contract conditions) less favourable than the statutory conditions of employment, the contract shall have effect as if the statutory conditions of employment were substituted for the contract conditions.
Findings of the Court:
The Court reviewed the provisions of SI 21/1998 and of the relevant Employment Regulation Order ( SI 359/2009).
The Court notes that it was common case that the Employment Regulation Order applies in this case. However in a judgment of the High Court on the 7th July 2011 in a matter entitled John Grace Fried Chicken Limited and Ors V The Catering Joint Labour Committee and Ors Feeney J found that the Sections 42, 43, and 45 of the 1946 Industrial Relations Act and section 48 of the 1990 Act i.e those sections which gave the Court power to register Joint Labour Committees and to make Employment Regulation Orders are invalid having regard to the provisions of Article 15.2.1 of the Constitution of Ireland. While that case referred to a single Employment Regulation Order, there is no doubt that it has general application. As a consequence the terms of the Employment Regulation Order SI (359/2009) at issue in this dispute are no longer of legal effect. Since the High Court has decided that Employment Regulation Orders have no legal effect it appears to this Court to follow that provisions in any other Statutory Instrument which purport to give legal effect to the the provisions of an Employment Regulation Order are equally null and void. Consequently those provisions in SI 21/1998 dealing with the effect of Employment Regulation Orders equally are of no legal effect.
However that does not mean that the other provisions of SI 21/1998 also are of no legal effect. These continue to be in force.
In general SI 21/1998 exempts those in the tourism industry from the provisions of Sections 11,12,13 and 16 of the Act. It is common case that the Respondent works within the tourism industry.
However the exemption provided for in SI 21/1998 is not absolute. It only applies if the employer complies with the provisions of Regulation 5 of the Statutory Instrument.
Regulation 3(1) states:
Without prejudice to Regulations 4 and 5 of these Regulations and subject to the subsequent provisions of this Regulation, each of the activities specified in the Schedule to these Regulations is hereby exempted from the application of sections 11, 12, 13 and 16 of the Act.
Regulation 3(3) states
(3) The exemption shall not apply, as respects a particular employee, if and
for so long as, the employer does not comply with Regulation 5 of these
Regulations in relation to him or her.
Regulation 4 of SI 21/1998 states:
4. If an employee is not entitled, by reason of the exemption, to the rest period
and break referred to in sections 11, 12 and 13 of the Act, the employer shall
ensure that the employee has available to himself or herself a rest period and
break that, in all the circumstances, can reasonably be regarded as equivalent
to the first-mentioned rest period and break.
Regulation 5 provides
5. (1) An employer shall not require an employee to whom the exemption
applies to work during a shift or other period of work (being a shift or other
such period that is of more than 6 hours duration) without allowing him or her
a break of such duration as the employer determines.
(2) In determining the duration of a break referred to in paragraph (1) of this
Regulation, the employer shall have due regard to the need to protect and
secure the health, safety and comfort of the employee and to the general
principle concerning the prevention and avoidance of risk in the workplace.
It appears to this Court that two separate duties are imposed on the Employer;
(a) under Regulation 4 of the SI he must give employees rest breaks which can reasonably be regarded as being equivalent to those set out in Sections 11 12 and 13 of the Act and;
(b) under Regulation 5 of the SI he cannot allow an employee to work for more than six consecutive hours with allowing him a break sufficient to protect the employees' health, safety and comfort and to avoid any risk in the workplace.
Accordingly the Court must determine if the Respondent was compliant with Sections 4 and 5 of the Statutory Instrument before determining whether and the extent to which the Respondent can avail of the exemptions under Sections 11,12 and 13 of the Act.
In this context the Court considered each of the Complaints in turn.
Section 11
Section 11 of the Act provides as follows:
“An employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer”
Complainant’s case
The Complainant identified six occasions on which he was not afforded 11 consecutive hours rest between shifts by his Employer. The dates identified are as follows:-
17/18 January 2010 when his shift finished at 3:35 and his next shift commenced at 13:54 that same day; 10 hours 19 minutes
12/13th March 2010 When his shift finished at 05:38 hours and his next shift commenced at 3:23 that same day; 9 hours and 45 minutes
26/27th March 2010 when his shift finished at 05:14 and his next shift commenced at 15:00 hours that day; 9 hours and 46 minutes
23/24th April when his shift finished at 06:38 hours and his next shift commenced at 15:21 hours that same day; 7 hours and 47 minutes
28/29th April 2010 when his shift finished at midnight and his next shift commenced at 06:00 hours that same day; 6 hours
1st/2nd May 2010 when his shift finished at 5:12 hours and his next shift commenced at 15:10 hours that same day; 9 hours and 58 minutes
The Complainant submitted that no compensatory rest allowances were made in his roster to offset the lack of daily rest breaks he was deprived of on those occasions.
Respondent’s case
In response the Respondent submitted that the Complainant was provided with compensatory rest following each of these occasions. A table was submitted to the Court which, the Respondent contended, demonstrated that the daily rest breaks of 11 hours were received by the Complainant on most occasions and that the rosters were designed to ensure that the rest breaks were available to him. Finally the Respondent said that the Complainant never raised this issue with management at any of the relevant material times.
Findings of the Court
In case no 84/04,Commission v United Kingdom[2006] E.C.R. 1-7471, the European Court of Justice ruled that employers must ensure that their employees take this rest period. The Court approved the comments of the Advocate General in this case where she observed:
- “it is for the employer actively to see to it that an atmosphere is created in the firm in which the minimum rest periods prescribed by Community law are also effectively observed. There is no doubt that this first presupposes that within the organisation of the firm appropriate work and rest periods are actually scheduled. In addition it must, however, be a matter of course within a business, in practice as well, that workers’ rights to rest periods not only exist on paper but can effectively be observed. In particular, no de facto pressure should arise which may deter workers from actually taking their rest periods.”
In that context this Court notes that whilst the rosters may have been designed to provide an 11 hour daily rest period between shifts, the reality was that on a number of occasions it was not possible for the Complainant to avail of those breaks. The details of those occasions were readily discernable from the records in the Respondent’s own possession. These records were the basis upon which weekly pay and accrued hours were calculated. Accordingly there was an ongoing opportunity for the Respondent to put systems in place to alert it to the occurrence of such breaches of the Act and to put remedial measures in place that would ensure that compensatory rest was provided to the Employee. The Respondent took no such action.
The Court therefore finds that the Respondent did not provide compensatory rest in respect of those occasions when the Complainant was required to work consecutive shifts without an 11-hour rest break in between each of them.
Regulation 4 of SI 21/1998 provides
4. If an employee is not entitled, by reason of the exemption, to the rest period and break referred to in sections 11, 12 and 13 of the Act, the employer shall ensure that the employee has available to himself or herself a rest period and break that, in all the circumstances, can reasonably be regarded as equivalent to the first-mentioned rest period and break.
On the evidence presented to it the Court finds that the Respondent did not “ensure that the Employee had available to himself a rest period that in all the circumstances can reasonably be regarded as equivalent to that provided for in Section 11 of the Act."
Accordingly the Court finds that on those occasions the Complainant was denied his rights under Section 11 of the Act as modified by S.I. No 21/1998.
Determination
The Court finds that the complaint is well founded.
Section 12 provides
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 a break referred to in subsection (1)
No complaint was raised in respect of Section 12(1).
Complainant’s Case
In respect of Section 12(2) of the Act the Complainant instanced 15 occasions from the Respondent’s Time Management System between December 2009 and May 2010 when he did not receive a break contrary to Section 12(2) of the Act.
He said that he was required to remain in the bar at all times and to ensure that all other staff received their breaks. However there was no system in place that enabled him to schedule a break for himself. This was particularly the case when the bar was understaffed and pressure of work required him to remain at his station to serve customers.
He said that the issues of understaffing and breaks were raised at meetings with management but no action was taken.
Respondent’s Case
The Respondent contended that it was the Complainants responsibility to schedule his own breaks. It disputed the contention that the bar was understaffed and said that there was ample opportunity for the Complainant to take breaks. The Respondent further submitted that the Claimant was contractually required to take his breaks. The Respondent further submitted that the Complainant did not always use the TMS system and that this issue was raised with him on a number of occasions.
Findings of the Court
The Court is satisfied that it is the duty of the Employer to ensure that breaks are taken and that there are systems in place to ensure that scheduled breaks can be and, in fact are, availed of by workers. The Court again notes the observations of the ECJ in case no84/04,Commission v United Kingdom[2006] E.C.R. 1-7471referred to above.
In this case the Court finds as a matter of fact that the Complainant, contrary to Section 12 (2) of the Act, was not always in a position to take the breaks to which he was entitled. There were inadequate systems in place to ensure that scheduled breaks could be taken on any given shift. The information contained in the TMS system supports the contention that that the Complainant could not take his breaks. Management did not act on this information to discharge its obligations under the Act.
The Court further notes that the Respondent was entitled to rely on the exemption from the strict application of Section 12 of the Act if he was pursuant to Regulation 3 of S.I. No 21/1998 compliant with Regulation 5 of that Statutory Instrument.
Regulation No 3 provides
3. (1) Without prejudice to Regulations 4 and 5 of these Regulations and subject to the subsequent provisions of this Regulation, each of the activities
specified in the Schedule to these Regulations is hereby exempted from the application of sections 11, 12, 13 and 16 of the Act.
However, Regulation 3(3) provides that the exemption does not apply in certain circumstances
(3) The exemption shall not apply, as respects a particular employee, if and for so long as the employer does not comply with Regulation 5 of these Regulations in relation to him or her.
Regulation 5 provides
5. (1) An employer shall not require an employee to whom the exemption applies to work during a shift or other period of work (being a shift or other such period that is of more than 6 hours duration) without allowing him or her a break of such duration as the employer determines.
(2) In determining the duration of a break referred to in paragraph (1) of this Regulation, the employer shall have due regard to the need to protect and secure the health, safety and comfort of the employee and to the general principle concerning the prevention and avoidance of risk in the workplace.
Furthermore Regulation No 4 of S.I. No 21/1998 provides
4. If an employee is not entitled, by reason of the exemption, to the rest period and break referred to in sections 11, 12 and 13 of the Act, the employer shall ensure that the employee has available to himself or herself a rest period and break that, in all the circumstances, can reasonably be regarded as equivalent to the first-mentioned rest period and break.
The Court finds that the Respondent in this case failed to make any arrangements for the Complainant to take a break of any duration on a number of occasions in the course of his employment contrary to Regulations 4 and 5 (1) of S.I. 21/1998. Accordingly the exemption provided for in Regulation (3) does not apply in respect of those occasions and the respondent denied the Complainant his entitlements contrary to Section 12 of the Act.
Determination:
The complaint is upheld.
Section 13
Section 13(5) provides
Save as may be otherwise provided in the employee’s contract of employment –
(a) the rest period granted to an employee under subsection (2), or
(b) one of the rest periods granted to an employee under subsection (3),
shall be a Sunday or, if the rest period is of more than 24 hours duration, shall include a Sunday.
Complainant’s case
The Complainant’s contract stated that he would work as required on Sunday. However his employment was governed by an ERO that provides:
- During the off-season the normal working fortnight shall be 10 days, calculated on the basis of alternative Sundays off.
The “Season” means the period commencing on the Sunday before Easter Sunday and ending on the last Sunday in September.
The 1946 Act provides at Section 44 that
(3) If a contract between a worker (being a worker to whom an employment regulation order, which fixes conditions of employment, applies) and his employer provides for conditions of employment (in this subsection referred to as the contract conditions) less favourable than the statutory conditions of employment, the contract shall have effect as if the statutory conditions of employment were substituted for the contract conditions
The Complainant submitted that he was entitled, during the off season, to every second Sunday off.
His roster indicates that he was required to work successive Sunday’s on a regular basis during the off season.
He adduced evidence to the Court to the effect that in the period 27th December 2009 to 17th January 2010 he worked four Sundays in succession. In addition between 14th February and 18th April 2010 he worked ten Sundays in succession.
The Respondent submitted that his contract of employment contained a provision that he would work Sundays. The Respondent relied on a strict application of Section 13(5) of the Organisation of Working Time Act.
Findings of the Court:
The Court is satisfied that by virtue of Section 43 of the 1946 Act the contractual provision agreed between the parties was substituted by the provisions set out in the ERO. However in light of the decision of the High Court it appears that Sections 42, 43, and 45 of the 1946 Industrial Relations Act and section 48 of the 1990 Act are invalid having regard to the provisions of Article 15.2.1 of the Constitution of Ireland that Section 43 of the 1946 Act and any Employment Regulation Orders made thereunder have no legal effect.
Therefore the terms of the Complainants contract of employment are applicable. That contract provides for the Complainant to work as required on Sunday.
Accordingly the Respondent was acting within the terms of the contract when scheduling the Complainant to work successive Sundays. The respondent was not acting contrary to Section 13 of the Act.
Determination
The Complaint is rejected.
Complaints
Section 15
The relevant parts of Section 15 provides
1) An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period ”) that does not exceed
a) 4 months, or not relevant
b) 6 months -
(i) in the case of an employee employed in an activity referred to in paragraph 2, point 2.1. of Article 17 of the Council Directive
Article 17 of Directive 2003/88/EEC makes provision for derogations for certain industries from specific articles of the Directive.
The relevant part of Article 17, 2.1 Paragraph 2 provides for a derogation from Articles 3, 4, 5, 8 and 16
Derogations may be adopted by means of laws, regulations or administrative provisions or by means of collective agreements or agreements between the two sides of industry provided that the workers concerned are afforded equivalent periods of compensatory rest or that, in exceptional cases in which it is not possible, for objective reasons, to grant such equivalent periods of compensatory rest, the workers concerned are afforded appropriate protection:
(ii) tourism;
Position of the parties
Complainant’s Case
The Complainant submitted that he was regularly scheduled to work in excess of 48 hours per week in the four month period leading up to the making of his complaint. He submitted evidence to this effect to the Court.
Respondent’s Case
The Respondent submitted that the Company is engaged in the tourism industry and that this fact, pursuant to Section 15 of the Act, brings it within the scope of Article 17 (2) 2.1 of the Directive. Accordingly the Respondent submitted that it is entitled to calculate the maximum working week over a period of 6 months.
The Respondent submitted evidence to the effect that the Complainant worked less than 48 hours per week in any six month period during which he was employed.
Findings of the Court:
The Court is satisfied that the Respondent hotel is engaged in the tourism sector and accordingly is entitled pursuant to Section 15 of the Act to calculate maximum working hours per week over a six month period. The evidence presented to the Court demonstrates that the Complainant worked less than 48 hours per week in the relevant six month period.
Determination
The complaint is not upheld.
Section 17
The relevant part of Section 17 provides:
- (2) If the hours for which an employee is required to work for his or her employer in a week include such hours as the employer may from time to time decide (in this subsection referred to as “additional hours”), the employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in that week on which he or she proposes to require the employee to work all or, as the case may be, any of the additional hours, of the times at which the employee will be required to start and finish working the additional hours on each day, or, as the case may be, the day or days concerned,
Complainant’s Case
The Complainant submitted that he never received proper notification on any of the many occasions on which he was required to work overtime.
Respondent’s Case
The Respondent submitted that the Complainant was notified of the rosters on a weekly basis in advance and that when he was required to work additional hours he was given as much notice as possible given the nature of the business involved.
Findings of the Court:
From the TMS system the Court established that the Complainant was required to work additional hours on a number of occasions in the relevant period.
The Court notes that Section 17(2) provides that the employer
“shall notify the employee subject to subsection (3), at least 24 hours before the first day or as the case may be the day in that week on which he or she proposes to require the employee to work all or, as the case may be, any of the additional hours ..”.
The notification in this case is mandatory and is subject only to the provisons of subsection (3). Subsection (3) has no bearing on this case.
In response the Employer referred the Court to Section 17 (4) of the Act which states:
- (4) A notification to an employee, in accordance with this section, of the matters referred to in subsection (1) or (2), as the case may be, shall not prejudice the right of the employer concerned, subject to the provisions of this Act, to require the employee to start or finish work or, as the case may be, to work the additional hours referred to in subsection (2) at times other than those specified in the notification if circumstances, which could not reasonably have been foreseen, arise that justify the employer in requiring the employee to start or finish work or, as the case may be, to work the said additional hours at those times
The Respondent contended that the additional hours worked could not be foreseen and accordingly no breach of this section of the act took place.
Findings of the Court
From the evidence presented to it the Court finds that that the Complainant worked additional hours on 24 occasions in a 13 week period. The additional hours worked varied from 30 minutes to in excess of two hours without notice.
The Court takes the view that the provisions of Section 17 (4) are designed to deal with circumstances that “could not reasonably have been foreseen”. It is not a general license to rely on additional hours in circumstances where the frequency of such hours renders them forseeable and would require management intervention to properly schedule workers to cover them.
In this case the Court finds that the frequency of such additional hours was such as to render them reasonably forseeable and accordingly the Court upholds the complaint.
Determination
The Court upholds the complaint.
Section 21
The relevant part of Section 21 provides:
21.—(1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines,
(a) a paid day off on that day
(b) a paid day off within a month of that day
(c) an additional day of annual leave
(d) an additional day's pay
Complainant’s case
The Complainant contends that on 31st December 2010 he worked 3:30 minutes after midnight into January 1st and was not paid double time for those hours nor compensated in any other way contrary to Section 21 of the Act. He further contends that he worked 3:37 minutes on St Patricks Day 2010. He said he worked on Easter Monday and again for 3:23 minutes on May 3rd 2010 and was not paid any additional payment nor did he receive any compensation by way of time in lieu.
Respondent’s Case
In response the Respondent contended that the Complainant was properly compensated for his rostered shifts on all public holidays. In respect of additional hours the Respondent contended that these hours were aggregated and any hours worked in excess of the average working week inclusive of public holidays were paid at time and a half in lieu.
Findings of the Court:
The Court is satisfied that the Respondent paid the Complainant in respect of rostered hours on the relevant public holidays. However the Complainant also worked additional hours on those days for which he was not paid double time nor compensated by way of time in lieu. The practice of aggregating hours on a weekly basis and paying for hours in excess of the weekly average is not consistent with the provisions of the Act. Hours worked on a public holiday are distinct and must be dealt with in respect of those days.
Determination:
The Court upholds the complaint.
Remedy:
The Court has given careful consideration to the various claims raised by the Complainant and has taken into account the decision of the ECJ in the case ofSabine van Colson and Elisabeth Kamann v Land Nordrhein-Westfalen [1984] Case 14/83 ECR 1891in coming to a conclusion on the appropriate remedy in this case. Having taken all factors into account the Court sets aside the decision of the Rights Commissioner and awards the Complainant compensation in the sum of €5,000.00 in full and final settlement of all of the issues before it in this case.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
2nd September 2011______________________
MG.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.