FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : MICHAEL O' NEILL MUSHROOMS LTD (REPRESENTED BY ROSEMARY MALLON, B.L., INSTRUCTED BY FLYNN O'DRISCOLL SOLICITORS) - AND - MS GIEDRA TIATOVA (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner's Decision r-106669-wt-11.
BACKGROUND:
2. The Worker appealed the Rights Commissioner's Decision to the Labour Court on 21st December, 2011. A Labour Court Hearing took place on 25th April, 2012. The following is the Labour Court's Determination:
DETERMINATION:
The matter before the Court arises out of an appeal by Mr Giedra Tiatova (“the Complainant”) against a Decision of the Rights Commissioner that a complaint he made against his employer was not well-founded. He had complained that his employer, Michael O’Neill Mushrooms Ltd (“the Resondent”), on a number of occasions in the relevant period, denied him the daily rest period set out in Section 11 of the Organisation of Working Time Act 1977 ("the Act").
The Appellant employed the Complainant as a mushroom picker commencing on or about 11 May 2010. His employment terminated on 29 November 2010.
On 28 February, 2011 he submitted a complaint to the Rights Commissioner to the effect that the Respondent had failed to provide him with the daily rest breaks to which he was entitled under Section 11 of the Act. The Rights Commissioner found against the Complainant. He appealed this Decision to the Labour Court.
Complainant’s Position
Mr Richard Grogan, Solicitor, on behalf of the Complainant, submits that while employed by the Respondent he was, contrary to the provisions of Section 11 of the Act, regularly required to attend for work on successive days without an 11-hour daily rest period. He submitted attendance records in support of his complaint.
Respondent’s Position
Ms Rosemary Mallon, B.L., on behalf of the Respondent, submitted that whilst there were a small number of occasions on which the Complainant did not receive an 11-hour daily rest period between shifts he did receive compensatory rest as provided for in S.I. No. 21/1998: Organisation of Working Time (General Eexemptions) Regulations, 1998.
Findings of the Court
A number of issues were raised during the hearing that were not properly before the Court and accordingly have not been taken into consideration in this case.
The Court examined the records submitted by both parties to this dispute. On the basis of that examination the Court finds that over the period of his employment the Complainant was required to attend for work on at least 10 occasions without the benefit of an 11-hour daily rest period between the end of one shift and the commencement of the next shift. In the relevant time this occurred on at least 8 occasions. This amounts to a breach of Section 11 of the Act unless the Complainant was employed in an exempt activity within the meaning of S.I. No 21/1998 and was provided with compensatory rest as provided for in the Statutory Instrument.
On the evidence before it the Court finds that the Complainant was employed in the agriculture sector, an exempt activity within the meaning of the Statutory Instrument.
Article 4 of the Statutory Instrument provides
- 4. If an employee is not entitled, by reason of the exemption, to the rest period
and break referred to in sections 11, 12 and 13 of the Act, the employer shall
ensure that the employee has available to himself or herself a rest period and
break that, in all the circumstances, can reasonably be regarded as equivalent
to the first-mentioned rest period and break.
According to this Article a person seeking to rely on an exemption in respect of Section 11 of the Act must pursuant to Article 4 of Statutory Instrument No 21/1998“ensure that the employee has available to himself or herself a rest period and break that, in all the circumstances, can reasonably be regarded as equivalent to the first-mentioned rest period and break.”
It is a matter for the person seeking to rely on the exemption to show that they have complied with this Article. This requires a positive demonstration that an equivalent rest period to the statutory 11-hour consecutive break has been made available to and availed of by the worker concerned in addition to any other breaks to which they were entitled. They must also demonstrate that the equivalent break has been provided to the employee at the first available opportunity to do so.
No such evidence was presented to the Court in this case. Accordingly, the Court finds that the Respondent has not shown that it provided the Complainant with an equivalent rest period in this case.
The Court finds the complaint is well-founded, allows the appeal and instructs the Respondent to pay the Complainant compensation in the sum of €500.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
10th July, 2012______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.