DWT1230

Background:

The Complainant is employed by the Respondent Company. On 3^rdJune 2011 the Complainant submitted a complaint to the Rights Commissioner to the effect that contrary to the provisions of Sections 11,12,13,15,17 and 21 of the Organisation of Working Time Act 1997, he had been denied his entitlements to, inter alia, statutory rest periods and to proper payment for his annual leave and public holiday entitlements.

Rights Commissioner’s findings and Decision

The Rights Commissioner investigated the complaint and found as follows: -

• • •In relation to breaches of Section 11 of the Act, I find from the records submitted that there were 2 occasions when the claimant did not receive an 11 hour rest period – 4 November 2010 and 30 January 2011

    •In relation to breaches of Section 12 of the Act, I find that there are no breaches of the Act

    •In relation to Section 13 of the Act, I find that there are minor breaches of the Act.

    •In relation to Section 15 of the Act. I find that there are minor breaches of this Section.

    •In relation to Section 21, I find that there are no breaches of the Act

    •In relation to Section 17, there are no breaches of the Act as the claimant informed the employer that he wished to work any additional available hours.

  
  On foot of these findings the Rights Commissioner made the following Decision: -

  Based on the evidence presented at the hearing, I find that there are breaches of Sections 11, 13 and 15 of the Act.

  I order the employer to pay the claimant compensation in the sum of €900 for breaches of the Act.

  This sum must be paid within 6 weeks of the date of this decision.

Appeal

The Complainant appealed the award of the Rights Commissioner to the Labour Court on the following grounds

• “The employee did not receive his entitlements under Sections 11, 12, 13, 15, 17 and 21 of the Act. The level of compensation awarded under Section 11, 13 and 15 is contended should be higher.”

The Labour Court considered the complaint at an oral hearing on 25^thJanuary 2012. Both prior and subsequent to the hearing both parties made extensive written submissions setting out their respective positions on each of the complaints and on the appropriate level of award.

Position of the Parties at the Hearing:

Section 11 Complaint

Section 11 of the Act states

• 11.—An employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer

The Complainant submitted that he was contracted to work from 7 a.m. to 3 p.m. each day. On some occasions he did not finish work until 4 p.m. or 6 p.m. on a given day. Occasionally he worked beyond this time so that there was not an 11-hour rest period between shifts.

Respondent’s Position

The Respondent Company admitted that its records show that it breached Section 11 of the Act on one occasion in the relevant period.

Findings of the Court

The Court finds that the Respondent Company breached the provisions of Section 11 of the Act in respect of this employee on one occasion in the relevant period.

Section 12 Complaint

Section 12 of the Act states

• 12.—(1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes

  (2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1)
  

  (3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour).

  (4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2)

The Complainant submitted that the terms and conditions of his employment state that when working a 7 a.m. to 3 p.m. shift he would receive a 30-minute break between 9 and 9.30 a.m. and a further break of 10 minutes between 12.50 and 13.00 hours. He submits that the period between 9.30 a.m. and 3.00 p.m. is five-and-a-half hours. He submits that Section 12(1) of the Act provides that where an employer requires an employee to work more than four-and-a-half hours s/he is entitled to a break of 15 minutes. He submits that the arrangements in place in the Respondent Company amount to a breach of the provisions of Section 12(1) and act to deprive him of his entitlements under this Section.

Respondent’s Position

The Respondent submitted that the arrangements in place are part of a collective agreement concluded with the workers concerned. The breaks are not recorded but it is improbable that the Complainant did not avail of the breaks at the set times. The entire warehouse stops at those times and all staff take the scheduled breaks in the canteen. The Complainant was part of the warehouse staff and availed of these breaks along with all of his colleagues.

Findings of the Court:

The Court finds that there is a break system in place that is universally availed of by all of the warehouse staff. However the Court also finds that Section 12(1) of the Act requires that a break of 15 minutes be given to a worker who is required to work more than four and a half hours. In this case the worker is required to work five-and-a-half hours and is allowed a break of ten minutes only. Accordingly the Court finds that the worker has been denied his entitlements under Section 12(1) of the Act.

Section 13 Complaint

Section 13 of the Act states

• 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.

  (6) The requirement in subsection (2) or paragraph (a) or (b) of subsection (3) as to the time at which a rest period under this section shall commence shall not apply in any case where, by reason of a provision of this Act or an instrument or agreement under, or referred to in, this Act, the employee concerned is not entitled to a daily rest period in the circumstances concerned.

The Complainant submitted that contrary to the provisions of Section 13(2) he worked for 81 days with two days off in the period from 1 January 2011 to 22 March 2011. He further submitted that contrary to the provisions of Section 13(5) of the Act he received no premium pay for working on Sunday.

Respondent’s Position

The Respondent Company acknowledged eight breaches of Section 13(2) of the Act in the relevant period.

Findings of the Court

The Court finds that the Complainant was denied the rest periods provided for in Section 13(2) of the Act on eight occasions in the relevant period. The Court notes that the complaint pursuant to Section 13(5) was not pursued by the Complainant.

Section 15 Complaint

The relevant part of Section 15 of the Act says

(1) An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period ”) that does not exceed 4 months,

or

(b) 6 months—

(i) in the case of an Employee employed in an activity referred to in paragraph 2, point 2.1. of Article 17 of the Council Directive,

or

(ii) where due to any matter referred to insection 5, it would not be practicable (if a reference period not exceeding 4 months were to apply in relation to the employee) for the employer to comply with this subsection,

• • or
  (c) such length of time as, in the case of an employee employed in an activity mentioned insubsection (5), is specified in a collective agreement referred to in that subsection

The Complainant submitted that contrary to the provisions of Section 15(1) of the Act his employer “permitted” him to work an average of 49.5 hours in the relevant period.

Respondent’s Position

The Respondent acknowledged that it “permitted” the Complainant to work an average of 49.5 hours in the relevant period. The Respondent Company drew attention to the minor nature of the excess hours the Complainant was permitted to work in the relevant period.

Findings of the Court

The Court finds that the Respondent Company permitted the Complainant to work in excess of 48 hours per week in the relevant period contrary to the provisions of Section 15(1) of the Act.

Section 21 Complaint

Section 21 of the Act states: -

• 21.—(1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—

  a) a paid day off on that day

  (b) a paid day off within a month of that day

  (c) an additional day of annual leave

  (d) an additional day's pay

  Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.

  (2) An employee may, not later than 21 days before the public holiday concerned, request his or her employer to make, as respects the employee, a determination under subsection (1) in relation to a particular public holiday and notify the employee of that determination at least 14 days before that holiday.

  (3) If an employer fails to comply with a request under subsection (2), he or she shall be deemed to have determined that the entitlement of the employee concerned under subsection (1) shall be to a paid day off on the public holiday concerned or, in a case to which the proviso to subsection (1) applies, to an additional day's pay.

  (4) Subsection (1) shall not apply, as respects a particular public holiday, to an employee (not being an employee who is a whole-time employee) unless he or she has worked for the employer concerned at least 40 hours during the period of 5 weeks ending on the day before that public holiday.

  (5) Subsection (1) shall not apply, as respects a particular public holiday, to an employee who is, other than on the commencement of this section, absent from work immediately before that public holiday in any of the cases specified in theThird Schedule

  (6) For the avoidance of doubt, the reference in the proviso to subsection (1) to a day on which the employee is entitled to a paid day off includes a reference to any day on which he or she is not required to work, the pay to which he or she is entitled in respect of a week or other period being regarded, for this purpose, as receivable by him or her in respect of the day or days in that period on which he or she is not required to work as well as the day or days in that period on which he or she is required to work.

The Complainant submits that the obligation to maintain records that show compliance with the provisions of Section 21 of the Act lies with the employer. He submits that no such records have been produced and accordingly the onus of proving compliance with the Act has not been met by the Respondent Company. He submits that he did not, on public holidays, receive pay for the average hours he normally worked for the Respondent Company. Instead he was paid on the basis of an eight-hour day whereas he normally worked in excess of this amount.

Respondent’s Position

The Respondent submits that the Complainant, in the relevant period (December 4th2010 to June 3rd 2011), was entitled to seven Public Holidays. The Respondent Company submits that he received his appropriate entitlements in respect of the first four of these Public Holidays. The Respondent Company further submits that in the period March 2011 to June 2011 the Complainant was entitled to a further three Public Holidays. The Respondent Company submits that the Complainant was paid eight hours in respect of each of these Public Holidays and three days off in lieu. The Respondent Company submitted copy pay slips setting out the payments made on each of the Public Holidays that fell during the relevant period. The Respondent submits that the Complainant was paid in accordance with the provisions of S.I. No 475/1997 Organisation of Working Time (Determination of Pay for Holidays) Regulations, 1997.

Findings of the Court

The Court finds that there were seven Public Holidays in the relevant period. The Complainant worked on two of those days. He was paid for the actual hours he worked on those two days and received an extra days pay in accordance with the provisions of Section 21(d) of the Act. On the five Public Holidays on which he did not work the Court finds that the Complainant was paid a day’s pay, amounting to eight hours' pay, in respect of each of those days in accordance with the provisions of Section 21(1) (a) of the Act.

Accordingly the Court finds that no breach of this Section of the Act occurred.

Section 17 Complaint

• • 17.—(1) If neither the contract of employment of the employee concerned nor any employment regulation order, registered employment agreement or collective agreement that has effect in relation to the employee specifies the normal or regular starting and finishing times of work of an employee, the employee's employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in each week that he or she proposes to require the employee to work, of the times at which the employee will normally be required to start and finish work on each day, or, as the case may be, the day or days concerned, of that week

    (2) If the hours for which an employee is required to work for his or her employer in a week include such hours as the employer may from time to time decide (in this subsection referred to as “additional hours”), the employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in that week on which he or she proposes to require the employee to work all or, as the case may be, any of the additional hours, of the times at which the employee will be required to start and finish working the additional hours on each day, or, as the case may be, the day or days concerned, of that week

    (3) If during the period of 24 hours before the first-mentioned or, as the case may be, the second-mentioned day in subsection (1) or (2), the employee has not been required to do work for the employer, the time at which the employee shall be notified of the matters referred to in subsection (1) or (2), as the case may be, shall be not later than before the last period of 24 hours, preceding the said first or second-mentioned day, in which he or she has been required to do work for the employer.

    (4) A notification to an employee, in accordance with this section, of the matters referred to in subsection (1) or (2), as the case may be, shall not prejudice the right of the employer concerned, subject to the provisions of this Act, to require the employee to start or finish work or, as the case may be, to work the additional hours referred to in subsection (2) at times other than those specified in the notification if circumstances, which could not reasonably have been foreseen, arise that justify the employer in requiring the employee to start or finish work or, as the case may be, to work the said additional hours at those times.

    (5) It shall be a sufficient notification to an employee of the matters referred to in subsection (1) or (2) for the employer concerned to post a notice of the matters in a conspicuous position in the place of the employee's employment

    Complainant’s Position

    The Complainant submits that he was required to work excess or overtime hours on a regular basis. He submits that the Respondent did not, contrary to the provisions of Section 17(1) of the Act, give him 24 hours' notice before he was required to work such overtime or additional hours.

    Respondent’s Position

    The Respondent Company submits that the Complainant was not “required” to work overtime. The Respondent Company submits that the Complainant was offered overtime that he could accept or reject. He chose to accept the option to work overtime when offered. The Respondent submits that as there was no element of compulsion associated with overtime working the provisions of Section 17(1) were not contravened.

    Findings of the Court

    The Court finds that the Complainant was offered the opportunity to work overtime on a voluntary basis and he chose to accept such offers when presented to him. The Court notes that Section 17(1) provides for 24 hours' notice of a “requirement” to work overtime. In this case no such “requirement” was present. Accordingly the Court finds that this Complaint is not well-founded.

    Determination:

  
  

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
6th March, 2012______________________
JFDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.