DWT1216

The Claimant was employed as a Driver by the Company from 29^thJune 2010 until 9^thDecember 2010 when he was dismissed. The Claimant was required to work from 9am until approximately 6pm or when his deliveries were completed. He was paid €450 per week.

Mr. Richard Grogan, Solicitor, Richard Grogan and Associates, Solicitors, on behalf of the Claimant, stated that he did not always receive a daily break and that this happened on approximately two occasions each week. Furthermore he submitted that the Claimant did not receive additional breaks after he had completed six hours work as provided by Section 12 of the Act.

Mr. Grogan stated that the limitations on working time which the Act imposes are for health and safety reasons and the right to adequate rest has been characterised as a fundamental social right in European Law (see comments of Advocate General Tizzano inR v Secretary of State for trade and Industry, ex parte Broadcasting, Entertainment Cinematography and Theatre Union[2001] IRLR 559 which were quoted with approval by Lavin J inRoyal Liver V Macken,High Court, Unreported, 15th November 2002). InVon Colson &Kamann V Land Nordrhein - WestfalenECR 1891 the ECJ has made it clear that where such a right is infringed the judicial redress provided should not only compensate for economic loss sustained but must provide a real deterrent against future infractions.

Ms. Ellen So, on behalf of the Respondent, stated that it was up to the Claimant to avail of his breaks and she submitted that, as he was employed as a driver it was not possible to confirm when those breaks were taken.

Ms. So stated that records of working hours were ascertained from the tracking device in the truck, which indicated the times the Claimant returned to the Depot. Ms. So admitted to the Court that prior to the Claimant making his complaints under the Act, the Company did not monitor his finishing times nor those of other employees and consequently was unaware that the Claimant was working excessive hours. She told the Court that she was satisfied that the numbers and locations of deliveries allocated to him could be undertaken within a range of between 43 to 46 hours per week, as carried out by other drivers employed by the Company. She had no explanation for the extreme length of time it took the Claimant to complete them.

Conclusions of the Court

There were no records of meal breaks taken by the Claimant and no specific arrangements were put in place by the Respondent to ensure the Claimant availed of his breaks. The Court finds that there was a breach of Section 12 of the Act.

It is accepted by both sides that the records show that the Claimant worked an average of 49.1 hours per week. This is in contravention of Section 15 of the Act.

The records also show that on occasions he worked substantially in excess of his contracted hours of work and sometimes worked up to 9pm or later. The Court is satisfied that this was in breach of Section 17 of the Act.

The Court is satisfied that on the day of his dismissal on 9^thDecember 2010 the Claimant along with other drivers raised the issue of a pay increase with Ms. So. She informed them that due to the losses sustained by the Company that it was not possible to grant a pay increase. The Claimant then raised the matter of the excessive hours he was required to work and informed his Employer that he was not prepared to work beyond 6pm. Ms. So informed the Court that she then dismissed the Claimant on the basis that such a restriction on working hours would not have been possible given the nature of the work and she was of the view that it would have been unfair to other drivers to concede to such a demand.

The substance of the Claimant’s case is that when he brought it to the attention of the Respondent that he was working excessive hours he was dismissed.

Section 26 of the act provides as follows: -

• 26.—(1) An employer shall not penalise an employee for having in good faith opposed by lawful means an act which is unlawful under this Act.
  
  (2) If a penalisation of an employee, in contravention of subsection (1), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts, 1977 to 1993, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts.

Determination
It is the Determination of the Court that the Decision of the Rights Commissioner be affirmed and the Claimant be awarded compensation in the amount of €3,000 for the breaches of the Act which occurred.

The Court so Determines.





Signed on behalf of the Labour Court



Caroline Jenkinson
2nd February, 2012______________________
DNDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to David P Noonan, Court Secretary.