FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : BALLINALARD TRANSPORT LTD - AND - WALDEMAR POSTAWA (REPRESENTED BY KIERAN O' BRIEN SOLICITORS) DIVISION : Chairman: Mr Duffy Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner's Decision R-094317-WT-10/GC.
BACKGROUND:
2. The case before the Court concerns the Employer's appeal of a Rights Commissioner's decision. The dispute relates specifically to the Worker's claim that during the course of his employment the Employer breached several sections of the Organisation of Working Time Act, 1997 and he did not receive the appropriate amount of rest and break periods. The matter was referred to a Rights Commissioner for investigation and recommendation. The Employer failed to attend the Rights Commissioner's hearing. Based on the uncontested evidence of the Claimant, the Rights Commissioner issued her decision as follows:
"I find that the complaint under Section 12 of the Act to be well-founded. I require the employer to pay to the employee compensation of €1000".
The Company appealed the Decision of the Rights Commission to the Labour Court on the 13th January 2011, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997.
A Labour Court hearing took place on the 3rd April, 2012.
DETERMINATION:
This is an appeal by Ballinalard Transport Limited (the respondent) against the decision of a Rights Commissioner in a claim by Waldemar Postawa (the Claimant) under the Organisation of Working Time Act 1997.
The Respondent is a Haulage Contractor. The Claimant worked for the Respondent as a Driver from 3rd March 2008. He made complaints to a Rights Commissioner alleging various contraventions of the Act by his employer. Specifically, he complained that the Respondent contravened s. 12 by not allowing him adequate daily breaks, s.14 by not providing him with additional compensation in respect to Sunday working and s.15 by requiring him to work in excess of the maximum number of weekly hours permitted by the Act.
The Respondent failed to attend before the Rights Commission. On the uncontested evidence of the Claimant the Rights Commissioner found that the Respondent has contravened s.12 of the Act as alleged. The Rights Commissioner found that the other complaints were not well founded. The Rights Commissioner awarded the Claimant compensation in the amount of€1,000.
The Respondent appealed to the Court. There was no cross-appeal by the Claimant.
At the hearing of the appeal the Respondent's representative told the Court that the Claimant knew that he was required to take breaks during the course of the day and he was required to do so. In evidence the Claimant told the Court that he did receive breaks during the day and that his complaint did not relate to daily breaks but to inadequate rest periods between shifts.
Determination
On the Claimants own evidence the Court is satisfied that the Respondent did not contravene s.12 and that he did receive the sufficient daily breaks in accordance with the Act. The contravention of which the Claimant now complains relates to s.11 of the Act. No such complaint was before the Rights Commissioner and it cannot now be raised in this appeal.
The only contravention found to have occurred by the Rights Commissioner was in respect to s.12. In light of the Claimant's evidence that finding cannot stand.
The appeal is allowed and the decision of the Rights Commissioner is set aside.
Signed on behalf of the Labour Court
Kevin Duffy
23rd April 2012______________________
SCChairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.