FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : M. MCGUIRE HAULAGE LTD (REPRESENTED BY ESA CONSULTANTS) - AND - DARIUS NORKUNAS (REPRESENTED BY RICHARD GROGAN & ASSOCIATES SOLICITORS) DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal of a Rights Commissioner's Decision R-084463-WT-09/DI.
BACKGROUND:
2. The case before the Court concerns the Employer's appeal of a Rights Commissioner's Decision R-084463-WT-09/DI. The dispute relates to the Worker's claim that during the course of his former employment as a Truck Driver with the Company, his Employer breached several Sections of the Organisation of Working Time Act, 1997 and he did not receive his proper entitlements in terms of annual leave, rest periods and break periods as provided for under the Act. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 20th July, 2010 the Rights Commissioner issued his Decision which awarded the Worker compensation in relation to the Employer's alleged breaches under each relevant Section of the Act.On the 17th August, 2010 on grounds of quantum, 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. The Court heard the appeal on the 3rd November, 2011. A subsequent hearing took place on the 2nd February, 2012. The following is the Determination of the Court:
DETERMINATION:
The Case comes before the Court by way of an appeal by McGuire Haulage Ltd. (hereinafter “the Employer” or “the Respondent”) against a decision of the Rights Commissioner r-084463-wt-09/DI. The Rights Commissioner found that complaints made by Mr Darius Norkunas (hereinafter “the Complainant” or “Worker”) under Sections 12, 15, 17(2), 19(1) of the Organisation of Working Time Act 1997 (hereinafter “the Act”) were well founded and awarded him compensation of €4,000.
Background
The Complainant worked as a truck driver for the Respondent from 25thMarch 2009 until 25thJune 2009. The Complainant alleges that the Respondent routinely required him to work in a manner contrary to the provisions of sections 12, 15,17(2) and 19(1) of the Act. The Respondent disputes the alleged breaches of the Act.
Complainant’s Position
The Complainant alleged breaches of Sections 12, 15 17(2) and 19(1) of the Act.
The Complainant told the Court that he commenced work between 5 a.m. and 7 a.m. each morning and finished work at different hours each evening. He said that he was required to work no less than 12 hours per day. He said that he was not allowed to take breaks from his work during the day and was required to each his lunch whilst driving. He said that he brought food from home with him most days and ate it whilst driving for the most part. He said that his hours of work varied and he was never given notice till the last moment of changes to his commencement and finishing times of work. He said the Respondent did not pay his public or annual leave entitlements in accordance with law. He said that he completed weekly log sheets but that he never recorded any break times on those forms. He said that the finish times on those forms are not an accurate record of his actual finish times. In most cases he worked later than the finish time recorded on the form.
He said that he was never given a pay slip or a contract of employment.
The Respondent submits that it operates a policy whereby drivers must complete a weekly log report sheet confirming their start and finish times, rest breaks, trips, location and employee’s signature. Failure to do so results in a delay in the payment of wages.
The respondent refers the Court to the provisionsof Statutory Instrument No 817 of 2004 Organisation of Working Time (inclusion of transport activities) regulationsby which Mobile workers are exempted from the application of sections 11,12 13 and 16 of the Act. The Complainant was employed as a truck driver, a mobile worker for the purposes of the Statutory Instrument and accordingly does not come within the provisions of Section 12 of the Act.
The respondent submits that the vehicles driven by the Complainant contained a tracking system that records the truck’s journeys, location, and idle time. The Complainant drove vehicles that had such tracking devices installed except for the period commencing 20thApril and ending on 25thMay. During this period the Complainant completed the log sheets that confirm that he had taken a break of 30 minutes per day before submitting them to the payroll department. When the Complainant operated a vehicle that contained a tracking system it recorded an average of 191.31 minutes of idle time per day. The Respondent submits that amounted to a break in excess of the statutory periods.
The Respondent submits that Section 25(4) of the Act requires an employer maintain records of a worker’s working time. The Respondent submits that it has discharged that obligation and demonstrated its compliance with Section 12 of the Act to the Court.
Findings of the Court
The Court
The Complainant was employed driving trucks over 3.5 tons and accordingly comes within the scope of the 1997 Act. In this regard the Court affirms the decision of this Court in DTW0934 Goode Concrete Ltd v 58 Workers [April 2009].
“The Court was told that the Claimants in the main proceedings are engaged in driving trucks of over 3.5 tonnes. Accordingly they are covered by all the provisions of the Organisation of Working Time Act 1997 and are not covered by the exemptions provided for by S.I.817 /2004.”
Section 25 of the Act requires an employer to maintain records in the prescribed form. Failure to do so is an offence however it is not a matter for this Court. However this Court, when considering any complaint under the Act, may draw an inference from the failure of an employer to maintain records in the prescribed format. In addition where such records are not kept and produced to the Court the burden of proving compliance with the Act lies with the employer.
The Complainant told the Court that, contrary to the provisions of Section 12 of the Act, he worked without statutory rest breaks for the entire duration of his employment. He said that he was compelled to take eat his lunch whilst driving in order to complete his daily duties.
The Respondent submits that the tracking system on the vehicle shows idle time in excess of the statutory amounts provided for by Section 12 of the Act. The Respondent also submits that the weekly log sheets submitted by the Complainant record a thirty-minute break each day.
The Court finds that the burden of proving compliance with the provisions of Section 12 of the Act rests with the Employer. The evidence presented by the Employer does not record the breaks taken by the Complainant. Neither does it demonstrate that there was a culture of facilitating breaks in the Company that the Complainant was refusing to comply with. The vehicle tracking system does not record the activities of the Complainant but rather the activities of the truck he was driving. The weekly log sheets do not record the actual breaks taken or the time of those breaks. In addition the column on those sheets upon which the Respondent relies was completed by the Office and not by the Complainant. Accordingly the Court finds that the Respondent has failed to the burden of proving compliance with the Act.
Determination
The Complaint under Section 12 of the Act is well founded. The decision of the Rights Commissioner is upheld.
Section 15
Section 15 of the Act provides
- 15.—(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
(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 , or
(ii)where due to any matter referred to in section 5 , it would not be practicable (if a reference period not exceeding 4 months were to apply in relation to the employee) for the employer to comply with this subsection ,
- (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 , or
(c)such length of time as, in the case of an employee employed in an activity mentioned in subsection (5) , is specified in a collective agreement referred to in that subsection .
(3)The days or months comprising a reference period shall, subject to subsection (4) , be consecutive days or months.
(4)A reference period shall not include—- (a)any period of annual leave granted to the employee concerned in accordance with this Act (save so much of it as exceeds the minimum period of annual leave required by this Act to be granted to the employee),
(b)any absences from work by the employee concerned authorised under the Maternity Protection Act, 1994 , or the Adoptive Leave Act, 1995 , or
(c)any sick leave taken by the employee concerned.
- (a)the weekly working hours of which vary on a seasonal basis, or
(b)as respects which it would not be practicable for the employer concerned to comply with subsection (1) (if a reference period not exceeding 4 or 6 months, as the case may be, were to apply in relation to the employee) because of considerations of a technical nature or related to the conditions under which the work concerned is organised or otherwise of an objective nature,
- (a)the weekly working hours of which vary on a seasonal basis, or
- (a)4 months, or
The Respondent did not maintain records in accordance with Section 25 of the Act accordingly the burden of proving compliance with the Act lies with the Employer. The evidence presented by the employer consists of vehicle tracking system records. However the Complainant gave evidence to the Court that the tracking system did not record his actual working hours as he returned the vehicle to the yard/depot and continued working thereafter in the depot. No clock records or other daily signing in records were presented to the Court. The Respondent also submitted Weekly Log Reports in support of its position. However these show consistent weekly working hours in excess 48 hours per week. Accordingly the Court finds that the Respondent has failed to discharge the burden of proving compliance with Section 15 of the Act.
Determination
The Court determines that the Complaint under Section 15 of the Act is well founded. The decision of the Rights Commissioner is upheld.
Section 17
Section 17 of the Act provides
- Provision of information in relation to working time
17.—(1)If neither the contract of employment of the employee concerned nor any employment regulation order, registered employment agreement or collective agreement that has effect in relation to the employee specifies the normal or regular starting and finishing times of work of an employee, the employee's 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 each week that he or she proposes to require the employee to work, of the times at which the employee will normally be required to start and finish work on each day, or, as the case may be, the day or days concerned, of that week.
(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, of that week.
(3)If during the period of 24 hours before the first-mentioned or, as the case may be, the second-mentioned day in subsection (1) or (2) , the employee has not been required to do work for the employer, the time at which the employee shall be notified of the matters referred to in subsection (1) or (2) , as the case may be, shall be not later than before the last period of 24 hours, preceding the said first or second-mentioned day, in which he or she has been required to do work for the employer.
(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.
(5)It shall be a sufficient notification to an employee of the matters referred to in subsection (1) or (2) for the employer concerned to post a notice of the matters in a conspicuous position in the place of the employee's employment.
- Provision of information in relation to working time
The Respondent submits that the complainant was told by the foreman the day before of the requirement to work overtime. The foreman did not attend or give evidence to this effect. The Respondent also submitsthat the Complainant was generally required to work between the hours of 7.00 a.m. and 5.30 or 6.00 p.m. each day. It submits that the Complainant was well aware of this and raised no issues on this matter whilst in employment.
The Respondent offered no records or evidence to the Court in support of its submissions in response to this complaint. The foreman who allegedly conveyed the information to the Complainant was not present in Court to give evidence. The Complainant told the Court he did not receive any written contract of employment or statement of his hours of work.
Accordingly the Court determines that the complaint under Section 17(2) is well founded. The Court affirms the decision of the Rights Commissioner.
- Entitlement to annual leave
19.—(1)Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—
- (a)4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),
(b)one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or
(c)8 per cent of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):
- (a)4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),
(3)The annual leave of an employee who works 8 or more months in a leave year shall, subject to the provisions of any employment regulation order, registered employment agreement, collective agreement or any agreement between the employee and his or her employer, include an unbroken period of 2 weeks.
(4)Notwithstanding subsection (2) or any other provision of this Act but without prejudice to the employee's entitlements under subsection (1) , the reference in subsection (3) to an unbroken period of 2 weeks includes a reference to such a period that includes one or more public holidays or days on which the employee concerned is ill.
(5)An employee shall, for the purposes of subsection (1) , be regarded as having worked on a day of annual leave the hours he or she would have worked on that day had it not been a day of annual leave.
(6)References in this section to a working week shall be construed as references to the number of days that the employee concerned usually works in a week.
The Complainant submits that he was not paid for three days annual leave to which he was entitled in the relevant leave year. The Respondent submits that the Complainant, in the relevant time period, was paid wages amounting to €5310.35 that, at the statutory rate of 8% of total earnings, entitled him to holiday pay in the amount of €424.82. The Respondent submits that the Complainant was otherwise overpaid in the amount of €822.50. The Respondent submits that it is entitled to deduct the overpayment from the holiday pay due to the Complainant.
The Court finds that the Respondent has made out not defence on the Complainant’s entitlement to holiday pay in the amount of €424.82 that was not paid to him. The Respondent presented no evidence to the Court in relation to the alleged overpayment claimed. In addition the Respondent presented no authority to the Court in support of its contention that it is entitled to deduct the alleged overpayment from holiday pay due to the Complainant.
Accordingly the Court finds that the complaint made under Section 19(1) of the Act is well founded. The Court upholds the decision of the Rights Commissioner.
Determination
The Court upholds the Complainant’s complaints under Sections 12, 15 17(2) and 19(1) of the Act. The Court awards the Complainant compensation in the sum of €1,500 in respect of the breach of Section 12, €1,500 in respect of the breach of Section 15 of the Act, €500 in respect of the breach of Section 17(2) of the Act and €500 in respect of the breach of Section 19(1) of the Act.
The Rights Commissioner’s decision is varied accordingly.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
8th August 2012______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.