FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : THE FLEET STREET INN DUBLIN LTD (REPRESENTED BY PENINSULA BUSINESS SERVICES (IRELAND) LIMITED) - AND - RAFAL BURTAN DIVISION : Chairman: Mr Hayes Employer Member: Ms Doyle Worker Member: Ms Ni Mhurchu |
1. Appeal of Rights Commissioner's Decision r-102995-wt-11/JT.
BACKGROUND:
2. A Rights Commissioner hearing took place on the 31st March 2011, and a Decision was issued on the 21st July 2011.
The Worker appealed the Decision of the Rights Commissioner to the Labour Court on the 19th August 2011, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 24th November 2011.
DETERMINATION:
Background
The Complainant, Mr Rafal Burtan, worked for the Respondent on door security duties from May 2008 until December 2010. The Complainant contends that, contrary to the provisions of Sections 12, 13(5), 17, 19 and 21 of the Organisation of Working Time Act he was not afforded his entitlements in respect of rest breaks at work, weekly rest periods, notice of overtime working, Sunday premium, public holidays, annual leave entitlement.
Section 12
Complainant’sCase
The Complainant submitted that he worked variable hours within a range commencing at 8 pm and finishing in the early hours of the following morning. He normally worked on any combination of days including Friday, Saturday and Sunday. Occasionally he worked on other days during the week when requested to do so. He submitted that, contrary to the provisions of Section 12 of the Act he was consistently required to work for a period of more than 4 hours and 30 minutes without a break of at least 15 minutes. He submitted that he was required to sign a book at the commencement of his shift that set out his start time, the time at which he took a break and the time he finished work. He submitted that this book had no reality and did not represent the actual breaks he was given.
Respondent’s Case
The respondent submitted that the complainant was not required to work for more than 4 hours and 30 minutes without a break of at least 15 minutes. The respondent further submitted that the complainant recorded his working hours in a book that sets out clearly the breaks he was afforded and that these comply with the provisions of Section 12 of the Act.
Findings of the Court
The Court notes that the Respondent, contrary to the provisions of Section 25 of the Act did not, in an approved format, maintain records of attendance at work or of hours worked and breaks taken by the Complainant. Accordingly the evidential burden of proving compliance with the provisions of the Act lies with the Respondent.
The Court notes that the Respondent presented copies of an attendance book that the complainant signed that showed the alleged hours of attendance and breaks taken by the Complainant. The Court further notes that the Complainant submits that this book has no reality about it. He submits that it was filled in at the start of the shift irrespective of hours worked and breaks taken.
Having examined the book the Court finds, on the balance of probability, that the book is not an accurate record of the breaks taken by the complainant. However the Court also finds, on the balance of probabilities, that the Complainant was regularly allowed to take breaks that complied with the provisions of Section 12 of the Act. However it further finds that, because the book is not a true reflection of the hours worked and the breaks taken, the Respondent has failed to discharge the burden of proving compliance with Section 12 of the Act.
Section 13
Section 13 of the Act provides
- 13.—(1) In this section “daily rest period” means a rest period referred to insection 11
2) Subject to subsection (3), an employee shall, in each period of 7 days, be granted a rest period of at least 24 consecutive hours; subject to subsections (4) and (6), the time at which that rest period commences shall be such that that period is immediately preceded by a daily rest period.
3) An employer may, in lieu of granting to an employee in any period of 7 days the first-mentioned rest period in subsection (2), grant to him or her, in the next following period of 7 days, 2 rest periods each of which shall be a period of at least 24 consecutive hours and, subject to subsections (4) and (6)—
(a)if the rest periods so granted are consecutive, the time at which the first of those periods commences shall be such that that period is immediately preceded by a daily rest period, and(b) if the rest periods so granted are not consecutive, the time at which each of those periods commences shall be such that each of them is immediately preceded by a daily rest period.
(4) If considerations of a technical nature or related to the conditions under which the work concerned is organised or otherwise of an objective nature would justify the making of such a decision, an employer may decide that the time at which a rest period granted by him or her under subsection (2) or (3) shall commence shall be such that the rest period is not immediately preceded by a daily rest period
(5) Save as may be otherwise provided in the employee's contract of employment –
(a)the rest period granted to an employee under subsection (2), or- (b)one of the rest periods granted to an employee under subsection (3),
shall be a Sunday or, if the rest period is of more than 24 hours duration, shall include a Sunday.
- (b)one of the rest periods granted to an employee under subsection (3),
Complainant's Case
The Complainant submits that he was not given a written contract of employment. He further submits that any verbal contract he had with his employer did not contain a provision that required him to work on Sunday. Accordingly he contends that by requiring him to work between the hours of Midnight and three a.m. on Sunday morning on successive weekends the Respondent was acting contrary to the provisions of Section 13(5) of the Act.
Respondents Case
The Respondent submits that the Complainant was employed to act as a doorman on Saturday evening and into Sunday morning. The Respondent submits that a contract of employment was prepared for the Complainant but it could not confirm that it had ever been given to him. Nevertheless the Respondent submits that the Complainant at all material times knew that he was required to work on Saturday night into Sunday morning and again on Sunday night when required to do so. The Respondent submits that as the requirement to work on Sunday was either expressly or implicitly contained in the contract of employment it did not act contrary to the provisions of Section 13(5) of the Act.
Findings of the Court
The Court finds that the Complainant was employed for the express purpose of providing door security services for the Respondent at the weekend. He was required to work on both Saturday and Sunday evening into the early hours of the following morning. The Court accordingly finds that the Complainant’s contract of employment contained a provision that required him to work on Sunday and accordingly does not uphold the complaint under Section 13(5) of the Act.
Section 17
Section 17 of the Act provides that an employee is normally entitled to 24 hours notice of any additional hours s/he is required to work by their employer.
Complainant's Case
The Complainant submits that he was required to work at very short notice and that this was a regular occurrence. He presented copies of SMS messages he received from his employer which he submitted demonstrated that he had been given five to seven hours notice of his shifts rather than the 24 hours notice to which he was entitled pursuant to Section 17 of the Act.
Respondent's Case
The Respondent submits that the shift roster was published a week in advance and that the SMS messages represented answers to questions that had been raised by the Complainant and were not the first notification he received of the requirement to work a particular shift.
Findings of the Court
The Court finds that the Complainant is required to make out aprima faciecase regarding any complaint he seeks to pursue pursuant to Section 17 of the Act. This would at the very least require him to list some days and dates on which he was called in to work at short notice. It would also require that he show that these events had occurred within six months of the date on which the complaint was submitted to a Rights Commissioner under the Act. It is not sufficient for him to say that he was called in to work at short notice on unspecified days or dates over a two-year period. The Court further finds that the SMS messages presented in support of the Complainant’s submission do not assist it in deciding this matter.
Accordingly the Court finds that the Complainant has failed to establish a prima facie case that a breach of Section 17 of the Act occurred and accordingly holds that the Complaint is not well founded.
Section 14
Section 14 of the Act provides that where an employee is required to work on Sunday he is entitled to a supplementary payment for so doing. Where such a payment is not identified in the Contract of Employment or in the make up of the wages of the employee the Court should determine such an amount. If the employee works in an industry in which there is a collective agreement in place that sets out the level of compensation paid to workers who perform the same work as the complainant the Court should apply an amount equal to that provided for in such collective agreements.
Complainant’s Case
The Complainant submits that he was never given a contract of employment nor was he ever told that his rate of pay included any premium for Sunday working. Accordingly he submits that the Respondent acted contrary to the provisions of Section 14 of the Act.
Respondent’s Case
The Respondent submits that the Complainant was paid €18.10 per hour and that this amount was understood to include a premium payment for working Sunday.
Findings of the Court
The Court notes that the payslips submitted by the employer in respect of the Complainant make no reference to a Sunday premium. Furthermore the Court notes that the Respondent has no other records that show that the Complainant was ever advised as to the alleged inclusion of such a premium in his basic pay. Accordingly the Court finds that the Complainant was not paid a premium for working on Sunday. The Court therefore finds that the Complaint is well founded.
Section 19
The relevant parts of Section 19 of the Act provides that an employee is entitled 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
Complainant’s Case
The Complainant contends that the manner in which he was paid for his annual leave was contrary to the provisions of Section 19 of the Act.
Respondent's Case
The Respondent submits that the complainant was paid for all of his entitlement to annual leave.
Findings of the Court
The Court finds that, by its own submission, the Respondent accepts that on occasions it paid the Complainant quarterly in respect of annual leave but did not require him to actually take the leave in issue.
It is settled law that there is an obligation on an employer not only to pay for annual leave but to ensure that the worker avails of his full entitlement thereto. In this regard the views expressed by this Court inDWT0754 ARMEN MIKOIAN TRADING AS G& N CONSTRUCTION - AND -OLGA MOTOVILOVAare affirmed
- The right to paid annual leave is provided for by Article 7 of Directive 93/104/EC “concerning certain aspects of the organisation of working time”. Section 19 of the Organisation of Working Time Act gives effect to Article 7 of the Directive and must be interpreted so as to achieve the result envisaged by the Directive.
Article 7 of Directive 93/104/EC on the Organisation of Working Time (the Directive) provides that the prescribed minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated. The Act was enacted to transpose that Directive and in accordance with settled law it must be interpreted and applied so as to achieve the result envisaged by the Directive (C – 14/83 Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1891). Article 7 reflects the fact that the Directive is a health and safety measure and the requirement to provide employees with a minimum amount of paid annual leave per year is a health and safety imperative. This was made clear by the ECJ in C – 173/99 R v Secretary of State for Trade and Industry ex parte Broadcasting, Entertaining and Cinematography and Theatre Union [2001] IRLR 559. (See comments of Advocate General Tizzano which were quoted with approval Royal Liver Assurance Limited v Mackin & Others High Court Unreported Lavin J, 15th November 2002).
In the Court’s view what is required by Article 7 of the Directive and by the Act, is not only that workers receive the requisite leave, but that they be unconditionally and automatically paid their normal weekly rate, specifically in respect of that leave.
Therefore, the Court cannot accept that the respondent’s position of paying an allowance of 8% in lieu of her statutory holiday entitlement and granting unpaid time off was in accordance with the Act.
Accordingly, the Court holds that the Complaint under Section 19 of the Act is well founded.
Section 21
Complainant's Case
The Complainant contends that his employment terminated on 19th December and is thereby entitled to payment for the Public Holiday that fell on 25th of December, 2010 i.e. Christmas Day.
Respondent's Case
The Respondent submits that the Complainant ceased working for it on 14th December and accordingly is not entitled to payment for that Public Holiday.
Findings of the Court
Section 23(2) of the Act provides
23. (2) Where—- (a) an employee ceases to be employed during the week ending on the day before a public holiday, and
(b) the employee has worked for his or her employer during the 4 weeks preceding that week,the employee shall, as compensation for the loss of his or her entitlements under section 21 in respect of the said public holiday, be paid by his or her employer an amount equal to an additional day's pay calculated at the appropriate daily rate.
- (a) an employee ceases to be employed during the week ending on the day before a public holiday, and
To determine the Complaint under Section 21 of the Act the Court must first decide the date on which the Complainant ceased working for the Respondent.
The Complainant submits that the last date on which the Complainant worked for the Respondent was 14th December2010 some 11 days before the Public Holiday. The Respondent submits that whilst he did not work for his employer after 14thDecember 2010 his employment did not cease until 19thDecember some 6 days before the Public Holiday. He submits that this brings him within the scope of Section 23(2)(1) of the Act. He further submits that he worked for his employer during the 4 weeks preceding that week as required by Section 23(2) (2) of the Act.
The Court notes that the Complainant’s final pay slip is dated 19thDecember and it records payment for work performed during that week. Accordingly the Court is satisfied that the date of termination of the Complainant’s employment is 19thDecember and he therefore is entitled to payment for the Public Holiday that fell on 25thDecember 2010.
Determination
The Court determines that the complaint under section 12,19 and 21 are well founded. The Court determines that the Complaint under Section 13(5) and 17 of the Act are not well founded.
The Court awards the Complainant the sum of €1,500 compensation in respect of the breaches of the Act.
The Court varies the Rights Commissioner's Decision accordingly.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
16th January, 2012______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.