FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : OFFICE & INDUSTRIAL CLEANERS LTD (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - MS IRENA STANKEVICIENE (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Ms Ni Mhurchu |
1. Appeal of Rights Commissioner's Decision R-118304-WT-11/EH.
BACKGROUND:
2. The case before the Court concerns the Worker’s appeal of Rights Commissioner’s Decision R-118304-WT-11/EH. The Worker claims that during the course of her previous employment as a Cleaning Operative, the Employer breached the terms of the Organisation of Working Time Act 1997 and she did not receive her proper break entitlements. The Worker is seeking compensation as a result of the Employer’s alleged failure to allow her adequate time to take her breaks. The Employer rejects the Worker’s claim arguing that whilst it did not always record the Worker’s break times, sufficient time was allocated to allow the Worker to take her breaks between travelling from one location to another. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 2ndApril, 2012, the Rights Commissioner issued his Decision as follows:
“As per Sec 27 (3) (a) I have decided that the claim was well founded in part.As per Sec 27 (3) (c) I require employer to pay compensation of €275 to be paid within six weeks of the date below”.
On the 5thApril, 2012, the Worker appealed the Rights Commissioner’s Decision to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act 1997. A Labour Court hearing took place on the 25thJuly, 2012.
WORKER'S ARGUMENTS:
3.1.The Worker contends that she was not afforded sufficient time to take her breaks and this was mismanaged by her Employer.
2.The Worker is seeking compensation as a result of the Employer’s alleged breaches of the Act.
EMPLOYER'S ARGUMENTS:
4.1.There are a limited number of days relevant to this dispute as the Worker was entitled to take a break when she worked extended hours on a Thursday only.
2.The Employer asserts that ample time was provided for the Worker to take her break when travelling between work locations.
3.The Employer maintains that during the course of her employment the Worker never raised any concerns on this matter.
DETERMINATION:
This is an appeal by Irena Stankeviciene against the decision of a Rights Commissioner in her claim against her former employer, Office and Industrial Cleaners Ltd., under the Organisation of Working Time Act, 1997. The Rights Commissioner found that the Respondent had contravened s.12 of the Act and he awarded the Claimant compensation in the amount of €270. The Claimant appealed against quantum only. There is no cross-appeal.
The Court accepts, as did the Rights Commissioner, that the contraventions found to have occurred where minor in character. The Court also accepts that there are mitigating factors that should be taken into account including the fact that the Claimant's contract of employment expressly provided for the taking of breaks and that there was no discernible obstacle which prevented the Claimant from taking breaks. There was, however, no system in place directed at ensuring that breaks were actually taken. Nor was the imperative of compliance with the Act actively managed by the Respondent.
Having regard to all relevant considerations the Court believes that the compensation awarded by the Rights Commissioner should be adjusted upwards. In that regard the Court is of the opinion that an award in the amount of €600 is more appropriate in all the circumstances of the case.
The appeal is allowed and the decision of the Rights Commissioner is varied accordingly.
Signed on behalf of the Labour Court
Kevin Duffy
3rd August 2012______________________
SCChairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.