FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : TMS BARRIER SERVICES LIMITED (REPRESENTED BY LISA MAHER, B.L., INSTRUCTED BY EIRINN MCKIERNAN & CO., SOLICITORS) - AND - ENDRE SZUGYICZKI (REPRESENTED BY SIPTU) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal against a Rights Commissioner's Decision r-106156-wt-11/EH.
BACKGROUND:
2. The Company offers services including the installation, maintenance and removal of major traffic management schemes on national primary routes, motorways and high-speed dual-carriageways. The Employee worked as a HGV Driver based at the Ashbourne Depot but could if required be based at any of the Company's road sites nationwide. The Worker alleged infringements of theOrganisation of Working Time Act 1997 (the Act) and was awarded compensation after the Rights Commissioner's hearing.
The Employer 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 the 17th October, 2011. The Court heard the appeal on the 17th February, 2012, the earliest date suitable to the parties.
UNION'S ARGUMENTS:
3. 1. The Worker usually worked a 10-hour day and got a 30-minute lunch break, however, he did not get any other breaks as set down in the Act. The Employer does not have a record of the time additional breaks were allowed which also is a breach of the Act.
2. "Where an individual right is infringed the judicial redress provided should not only compensate for the Claimant's economic loss but must provide a real deterrent against future infractions" (ECR1891).
COMPANY'S ARGUMENTS:
4. 1. While the Drivers are on the roadway they are immobile for most of the working day and are free to take additional breaks. While these breaks are unscheduled it is common practice amongst the workforce and Drivers are advised of this practice at training and during their interview.
2. The site Supervisor allows the taking of breaks by any Driver who wished to take a break whenever it was safe to do so.
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 and 15. The Rights Commissioner upheld the complaint under Section 12 and awarded the sum of €3,000.00 and he did not uphold the complaint under Section 15.The Employer appealed the Decision of the Rights Commissioner and there was no cross-appeal.
The parties are referred to as they were at first instance. Hence Mr Endre Szugyiczki is referred to as “the Complainant” and TMS Barrier Services Limited is referred to as “the Respondent”.
The Complainant submitted a claim under the Act to the Rights Commissioner on 10thFebruary 2011. Therefore, the relevant period for the purposes of the Act is between 11thAugust 2010 and 3rdSeptember 2010 (the last day of the Complainant’s employment with the Respondent).
Background
The Complainant was employed by the Respondent from 25thFebruary 2008 until 3rdSeptember 2010. The Complainant was employed as a Heavy Goods Vehicle Driver involved in the installation, maintenance and removal of major traffic management barriers on national primary routes, motorways and high speed dual carriageways.
He claimed that he did not receive his breaks in accordance with Section 12 of the Act.
Summary of the Complainant’s Case
The Complainant submitted to the Court that he did not receive a fifteen- minute break within four-and-a-half hours of commencing work. He told the Court that he commenced work at 8.00am and finished around 6.30pm. He received a 30-minute break at 1.00 pm. On the night shift he worked from 8.30 pm until 6.30 am and received a 30-minute break at 1.00 am.
Summary of the Respondent’s Case
The Respondent told the Court that as a Driver the Claimant was free to avail of breaks at any point while he was waiting to move barriers. This situation occurred on a daily basis as the Complainant was not required to carry out full-time duties while road works were being undertaken by road maintenance contractors. He was provided with a 30-minute unpaid lunch break each day in accordance with his contract of employment.
Witness Testimony
The Complainant, Mr Endre Szugyiczki, gave evidence to the Court. In his evidence the Complainant said that there were occasions when he did not receive an early break in accordance with his entitlements under Section 12 (1) of the Act. He said that on such occasions he was only provided with one 30-minute break per day. The Complainant accepted that there were occasions when he was waiting to remove barriers, however, he said that he did not consider these times as breaks as he was not in a position to go away from the workplace. He accepted that there were waiting times, however, and he said that on certain occasions he was required to carry out other duties during these times, e.g. cleaning barriers. The Complainant told the Court that on a number of occasions he spoke to the HR Manager complaining that he could not leave his workplace to travel to a caf�/garage when he wanted to avail of a break (outside of his lunch break).
The Contracts Manager, Mr Gary Henry, gave evidence to the Court and said that the crew, including the Complainant, normally gathered at base at 8.00am and by 9.00am they travelled to the work site where they put the barriers in place on the roadside. The road closed to the public between 10.30am and 11.00am and from then on the crew was required to wait for the contractors to finish the roadworks until 4.00pm when the road had to be opened up to the public at which point the crew pick up the barriers and head back to base. He said that there was always an opportunity to take a break during these waiting periods.
Findings of the Court
The Law:-
The relevant section of the Act provides as follows: -
- 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).
(3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour).
(4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2).
It is common case between the parties that the Complainant received a 30-minute break within six hours of commencing work.
At the hearing the Respondent produced records of the Complainant’s start and finish times each day for the reference period covered by the claim. The records do not provide details of break times as the Respondent contended that it was not practical to do so in the circumstances. At the hearing the Union accepted that the records were an accurate reflection of the Complainant’s working hours.
In order to provide the Union with an appropriate opportunity to examine the records, subsequent to the hearing the Court supplied it with a copy of the records and requested it to make any comments but it did not do so.
The Complainant accepted that he received a lunch break of 30 minutes each day and that there were other occasions when he was not required to carry out any duties and was free to relax and avail of a snack if desired. The Complainant also accepted that on at least three or four days per week he had adequate breaks.
Having considered the submissions made and the evidence given, the Court is satisfied that during his unpaid lunch break the Complainant was free to leave the workplace, however, he was paid for all other times and consequently it was not unreasonable that he should not be allowed to leave the workplace during breaks times. In the circumstances, the Court is satisfied that the Complainant's work was organised so as to provide him with opportunities to take adequate breaks in compliance with the Act.
Accordingly, the Court finds that there was no contravention of Section 12(1) or (2) of the Act.
Determination
Having regard to the findings set out above the within appeal is allowed and the Decision of the Rights Commissioner is set aside.
Signed on behalf of the Labour Court
Caroline Jenkinson
26th April, 2012______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.