FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : MCR PERSONNEL LIMITED (REPRESENTED BY WARREN PARKES SOLICITORS) - AND - MR RYSZERD GIERMAKOWSKI (REPRESENTED BY POLISH CONSULTANCY ENTERPRISE) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner's Decision r-096399-wt-10/GC.
BACKGROUND:
2. The case before the Court concerns a dispute between the Employer and the Worker in relation to an appeal of a Rights Commissioner's decision. The Worker was previously employed by the Company as a steel fixer for a period of approximately eight months from October 2009 to June 2010. It is the Worker's claim that during the course of his employment, the Employer breached several sections of the Organisation of Working Act, 1997 and he did not receive the appropriate amount of annual leave or public holiday entitlements. The Worker further contends that he did not receive sufficient notice when he was required to work overtime hours. The Employer rejects the Worker's claim and agreement could not be reached between the parties.The matter was referred to a Rights Commissioner for investigation and recommendation. On the 4th August 2011, the Rights Commissioner issued her Decision as follows:
"I declare the complaints under Sections 17 and 19 to be well founded and I require the respondent to pay to the claimant the sum of €2,000 compensation for breach of the Act".
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 15th September, 2011. The Court heard the appeal on the 26th January, 2012, the earliest date suitable to the parties.The following is the Determination of the Court:
DETERMINATION:
The Complainant brought a complaint before a Rights Commissioner pursuant to the Organisation of Working Time Act 1997 (the Act) alleging breaches of Sections 17 and 19, 20 and 21. The Rights Commissioner upheld the complaints under Sections 17 and 19 of the Act and awarded the sum of €2,000. She made no finding under Section 20 and did not uphold the complaints under section 21of the Act. Both the Complainant and the employer appealed the Rights Commissioner’s Decision, however, the Complainant’s appeal was later withdrawn.
Mr Giermakowski did not attend the hearing of the appeal. Mr Blazej Nowak, Polish Consultancy Enterprise, on behalf of the Mr Giermakowski, requested an adjournment to allow his client return from Poland for the purposes of giving evidence and furthermore he requested the presence of an interpreter at the hearing. The Court declined his request on the basis that no application had been made prior to the date of the hearing. Both Mr Nowak and Mr Giermakowski had ample opportunity prior to the hearing to make such an application. The appeal was submitted to the Court over five months prior to the hearing date.
For ease of reference the parties are now given the same designation as they had at first instance. Hence MCR Personnel Limited will be referred to as ‘the Respondent’ and Mr Ryzard Giermakowski will be referred to as ‘the Complainant’.
Section 17 Complaint
Mr Nowak alleged that the Respondent was in breach of Section 17(2) of the Act when the Complainant was not provided with the required notification on occasions when he was required to work overtime.
Mr Warren Parkes, Solicitor, Warren Parkes Solicitors, on behalf of the Respondent disputed the Complainant’s contention and stated that the Complainant was supplied with a Contract of Employment (details supplied to the Court) setting out details of his working hours.
Mr Parkes stated that the Contract of Employment providesthat the Complainant has the option whether or not to accept additional hours/overtime. The contracts states:
- "You may be requested to work additional or less hours thanyour normal hours. In any event,wherereasonably possible, the Company will give 24 hours’ notice where it is anticipated that you will berequested to work additional hours..."
"You must notify your manager,upon notification,whether or not you wish to accept additional work or not.”
Mr Parkessaid that thelanguage used in the Section 17(2) of the 1997 Act is explicit, where there is a'requirement'on the employee to work additional hours/overtime,the employee must be given 24 hours advance notice. In the case of the Complainantthe
performance of additional hours/overtime wasnot compulsory and wasentirely at his
discretion.
Mr Parkes referred the Court toMCR Personnel Limitedv PienszkesDWT 11109 where in similar circumstances, the Court held that there was no contravention of Section 17 of the 1997. In that case Mr Pienszkes in his evidence before this Court stated that
- "he could haverefused to work and sometimesdid refuse to doso”
In DWT11109 the Court referred to the interpretation of Section 17 of the 1997 Act where the Court held:
- "On a plain reading of the subsection it is intended to cover a situation wherea worker is obliged to work the hoursdirected by the employer ...accordingly theCourt issatisfied that the Respondent did notcontravenes.17 ...".
Mr Parkes submitted that the facts of the instant case are thesame as that previously determined by the Court. The Complainant's contract is the same as that of Mr Pienszkes, with whom he worked on the same construction site at the same time. His conditionsof employment were also identical.
Having considered the submissions of both sides the Court is not satisfied that the employer has contravened Section 17(2) of the Act. The conditions of employment did not oblige the Complainant to work overtime, it was accepted that the Complainant made no complaints in the nine month period of his employment concerning the working of overtime. The Respondent told the Court that a manager visited the site on a daily basis to check on the employees allocated to the site. Furthermore, weekly meetings were held with the Union official and at no point were any issues raised about a requirement to work overtime. The Complainant notified the office on a weekly basis of the overtime hours he had worked that week, these were recorded and paid at the appropriate overtime rate.
Sections 19 Complaint
Mr Nowak alleged that the Respondent was in breach of the Act, as he did not receive the appropriate annual leave he was entitled to as provided by Section 19 of the Act and was not paid the appropriate annual leave payment in accordance with Section 21 of the Act.
The Complainant was employed from 27thOctober 2009 until 11thJune 2010. He was paid a rate of €16.93 per hour. He maintained that as the Complainant had worked 1355.9 hours in total in the period of his employment that he was entitled to 8% of those hours as annual leave, thereby giving him an entitlement to 108.47 hours annual leave, as he had only received 87 hours he therefore had a shortfall of 21.47 hours annual leave due to him. Mr Nowak submitted that a payment of one hour’s pay per day for travel money should have been included for the purposes of calculating the Complainant’s annual leave pay.
Mr Parkes disputed the hours work and produced details of payslips supplied to the Complainant for the period of his employment. These payslips give full details of the hours worker each week and details of holiday pay. Mr Parkes submitted that the Complainant worked a total of 1051.5 hours in the period of his employment with the Respondent and accordingly was entitled to 84.12 hours pay. It was not disputed between the parties that the Complainant received 87 hours paid annual leave, therefore Mr Parkes submitted that he was in actual fact overpaid 2.88 hours pay for annual leave.
However during the course of the hearing, Mr Parkes accepted that not all hours had been accounted for in his calculations and accepted that hours spent working on overtime had been omitted from his calculations and consequently accepted that there was an outstanding payment of €363.48 due to the Complainant.
Determination
The Court has considered the Respondent’s appeal of the Rights Commissioner's Decision. The Court does not find that the Respondent was in breach of Section 17(2) of the Act, it finds that there was a breach of Section 19 and awards the Complainant the sum of €800 compensation. The Rights Commissioner’s Decision is varied accordingly.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
3rd February 2012______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.