DWT1225

The employer appealed the Decision of the Rights Commissioner.

For ease of reference the parties are referred to as they were at first instance. Hence Mr John Brooks is referred to as “the Complainant” and R&M Quarries Limited is referred to as “the Respondent”.

The Complainant was employed by the Respondent from 1^stJune 2004 until 9^thDecember 2009 as a truck driver. He was paid €483.65 per week. He referred his claim to the Rights Commissioner on 3^rdFebruary 2010.

The Court examined the issue of the law applicable to the organisation of working time of mobile workers inGoode Concrete v 58 WorkersDWT0934. In that case the Court found that by virtue of Regulation 4 of S.I. 817 of 2004, entitled“Organisation of Working Time Act (Inclusion of Transport Activities) Regulations 2004” workers who are drivers or crew of vehicles used for the carriage of goods where the maximum permissible weight of the vehicle, including any trailer or semi-trailer, is 3.5 tonnes or more are fully covered by the Act of 1997 and are not exempt from the requirements of Sections 11, 12, 13 and 16 of that Act.

Following the making of these Regulations mobile workers are now covered by the restriction of weekly working time to an average of 48 hours.

The Court was told that the Complainant is engaged in driving trucks over 3.5 tonnes. Accordingly, he is covered by all the provisions of the Organisation of Working Time Act 1997 and is not encompassed by the exemptions provided for by S.I.817 /2004.

Summary of the Complainant’s Case

Mr. Shane Geraghty, B.L., instructed by Hayden & Co Solicitors, on behalf of the Complainant, submitted to the Court that the Complainant was required to work excessive hours in breach of Section 15 of the Act. Furthermore, he submitted that the Complainant did not receive his annual leave in accordance with Section 20 of the Act, in that he was instructed by his employer to go home on numerous occasions and to await a call from the employer. Mr. Geraghty submitted that on such occasions the Respondent treated such days as annual leave. The Complainant denied the Respondent’s contention that he agreed to such an arrangement.

Mr. Geraghty claimed that there were five days when this occurred and consequently he sought an entitlement to five day’s annual leave.

Summary of the Respondent’s Case

Mr. Alastair Purdy, Purdy Fitzgerald, Solicitors, on behalf of the Respondent, submitted to the Court that there was in fact no breach of Section 15 of the Act. He submitted detailed time-sheets for the last four months of the Complainant’s employment. These records show that the Complainant worked an average of 47.15 hours per week. Furthermore, Mr. Purdy submitted to the Court that the Complainant had received his full annual leave entitlement. He stated that the Complainant had consented to treat days as annual leave which might otherwise have been days of lay-off, therefore, he contended that there was no breach of Section 20 of the Act. Mr. Purdy produced details of annual leave taken by the Complainant up to the date of the termination of his employment.

The Court notes that the Rights Commissioner found that the Complainant had worked on average 60 hours per week however, this was without the benefit of detailed time cards which had not been made available to him at the hearing. The Court took account of detailed records supplied by the Respondent indicating the Complainant’s starting and finishing times and time-cards were supplied to the Court.

Having examined the detailed time-sheets submitted by the Respondent in respect of the Complainant’s working time for the period from 10^thAugust 2009 until 9^thDecember 2009, the Court finds that the average weekly hours worked by the Complainant in the four-month reference period were 46.25 hours on average i.e. excluding unpaid meal breaks; days of lay-off and days of holidays/public holidays. This figure is based upon taking the average number of working days per week and the average number of working hours per day in the four-month reference period.

Therefore, as the Court has found that the Respondent did not permit the Complainant to work in excess of 48 hours on average per week in the four- month reference period, it determines that the complaint alleging a contravention of Section 15 of the Act is not well-founded.

Section 20

The records show that the Complainant received 17 days annual leave in the leave year 2009/2010, 5 of which are in contention. The Complainant submitted to the Court that there were five days when the Respondent used his annual leave entitlements to pay him for days when there was no work available leaving him with no pay for five days when he was actually on holidays.

Section 20(1) of the Act prescribes the times at which annual leave is to be given as follows: -

• The times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements and subject—
  • 
    ( a ) to the employer taking into account—
    
    • (i) the need for the employee to reconcile work and any family responsibilities,
      (ii) the opportunities for rest and recreation available to the employee,
      
  ( b ) to the employer having consulted the employee or the trade union (if any) of which he or she is a member, not later than 1 month before the day on which the annual leave or, as the case may be, the portion thereof concerned is due to commence, and
  • ( c ) to the leave being granted within the leave year to which it relates or, with the consent of the employee, within the 6 months thereafter.

In computing compensation for the Respondent’s contravention of Section 20 of the Act, the Court awards compensation in the amount of €1,000 for the contravention which occurred.

In measuring the quantum of compensation which is fair and equitable in the circumstances the Court has also had full regard to the principle of effectiveness and proportionality which is enshrined in the law of the European Community. These principles require that the sanction for breaches of Community rights must be effective, proportionate and dissuasive (Von Colson and/KamannECR 1891).

Determination

It is the determination of the Court that the Decision of the Rights Commissioner be amended to provide that the Complainant be awarded compensation of €1,000 in respect of the breach of Section 20 of the Act. To that extent the within appeal is allowed.

Signed on behalf of the Labour Court



Caroline Jenkinson
16th February, 2012______________________
DNDeputy Chairman



NOTE

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