FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : STOBART (IRELAND) DRIVER SERVICES LTD (REPRESENTED BY PURDY FITZGERALD SOLICITORS) - AND - MR MICHAEL O RIORDAN (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal of Rights Commissioner's Decision R-115915-Wt-11/DI.
BACKGROUND:
2. The case before the Court concerns the Worker's appeal of Rights Commissioner's Decision R-115915-Wt-11/DI. The dispute relates specifically to the Worker's claim that during the course of his current employment as a Truck Driver with the Employer, the Employer breached several sections of the Organisation of Working Time Act, 1997 (the Act) and as a result he did not receive his proper entitlements as provided for in the Act. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 7th June, 2012, the Rights Commissioner issued his Decision in terms of the alleged breaches under Section 17 and Section 26 of the Act and found that the complaints made by the Worker were not well-founded.
The Employee 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 4th July, 2012. The Court heard the appeal on the 12th October, 2012, the earliest date suitable to the parties.
UNION'S ARGUMENTS:
3. 1. The Employer did not provide sufficient notice to the Worker when he was requested to commence working at an earlier time.
2. The Union contends that the Worker was penalised as a result of his refusal to knowingly breach the terms of the Act.
3. The Union maintains that the Worker was treated in an inequitable manner and is seeking compensation accordingly.
EMPLOYER'S ARGUMENTS:
4. 1. Management assert that the Worker did not have the right to refuse to attend work when he was requested to do so.
2. Management contends that the Worker was given a 45-hour rest period between the end of his last shift and the commencement of the next shift.
3. Management further contends that under the terms of the Act, less than the requisite 24-hour notice period can be given to a Worker in unforeseen circumstances.
DETERMINATION:
This case comes before the Court by way of an appeal by Mr Michael O’Riordan (“the Complainant”) against a Decision of the Rights Commissioner Number r-115915-wt-11/DI. The Complainant submitted a complaint under Section 27 of the Organisation of Working Time Act 1977 that Stobart (Ireland) Driver Services Limited ( the Respondent) had contravened the provisions of Section 17 of the Act and had penalised him contrary to the provisions of Section 26 of the Act. The Rights Commissioner decided that the complaint was not well founded.
Complainant’s Position
The Complainant is employed by the Respondent as a Truck Driver. He submits that on the 19thJuly 2011 while he was resting between shift duties he received a telephone call from his Employer instructing him to commence work at 06:00 hours the following morning. He submits that he advised his Employer that he was not due to return to work until some 18 hours later and queried why he was being called in early. He was told by his Employer that he did not know why he was being called in early but he instructed him to report for work as directed. The Complainant did not turn up for work the following morning. He submits that, pursuant to the provisions of Section 17 of the Act he was entitled to 24 hours' notice of a change to the normal commencement time of his shift. He submits that he had other arrangements made and that he was not advised of any exceptional circumstance that required his attendance. He submits that he was subsequently taken through a disciplinary procedure by his Employer for what he describes as refusing to assist his Employer engage in a breach of the law. He submits that this action by his Employer is contrary to the provisions of Section 26 of the Act. He requests the Court to find that his complaint is well founded, to award him compensation for the breaches of the Act and to instruct the Respondent to comply with the provisions of the Act.
Respondent’s Position
The Respondent submits that the Complainant is on notice that his working pattern is not fixed and that he may be called upon to vary his shift pattern to meet the needs of the business. It submits that on the night in question the Company was faced with an unforeseen situation that required the Complainant to report for work at 0600 hours the following morning. It relies on the provisions of Section 17(4) of the Act in this regard. It submits that there was no breach of Section 17 of the Act and that accordingly there could be no breach of Section 26 of the Act either. It submits that it was entitled to process the refusal of the employee to report for work through the disciplinary procedure.
Findings of the Court
The law
Section 17 of the Act provides
- (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 finishingtimes 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 thetimes 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 fromtimetotimedecide (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 thetimes at which the employee will be required to start and finishworkingthe 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, thetimeat 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) attimes 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 thosetimes.
(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.
Section 26 of the Act provides
Refusal by an employee to co-operate with Employer in breaching Act26.
(1) An Employer shall not penalise an employee for having in good faith opposed by lawful means an act which is unlawful under this Act [or the Activities of Doctors in Training Regulations ].(2) If a penalisation of an employee, in contravention of subsection (1) , constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to [2007] , relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts .
Findings of the Court
It is common case that the Respondent did not provide the Complainant with 24 hours’ notice of the time at which the Employee was required to report early for work on the day concerned. The Respondent submits that at the relevant time there were circumstances which could not reasonably have been foreseen that justified it in requiring the Employee to start at that time. The Respondent relies on the provisions of Section 17(4) in this regard.
In answer to a question from the Court the Respondent said that it did not remember the circumstances that prevailed at that time that justified its actions in this regard. Moreover the Complainant told the Court that when he queried why he was being called into work early he was told by the person concerned that he “did not know” why. The Respondent did not challenge this evidence.
The Court takes the view that the onus of making out the grounds of the defence set out in Section 17(4) of the Act lies with the person seeking to rely on it. In this case no grounds were made out by the Respondent. Indeed it expressly told the Court that it could not recall the exceptional circumstances that applied in this particular case. Accordingly the Court finds that the Respondent cannot rely on the defence set out in Section 17(4) of the Act.
The Court finds that the Respondent acted contrary to the provisions of Section 17 (2) of the Act by requiring the Complainant to report for work without providing him with 24 hours’ notice of the starting time of his shift.
The provisions of Section 26 of the Act are designed to protect a worker against penalisation by an Employer for refusing to co-operate with a breach of the Act. The Court takes the view that, in the circumstances of this case, where the Respondent failed to set out any grounds that would justify its decision to depart from the provisions of Section 17 (1) and or 17(2) of the Act when it contacted the Complainant on the 20thJuly 2011, the Complainant is entitled to rely on the provisions of Section 26 of the Act to protect him against penalisation of any form by his Employer for refusing to co-operate with a breach of the Act.
In considering the remedy to be applied in this case the Court is bound to follow the decision of the ECJ inSabine van Colson and Elisabeth Kamann v Land Nordrhein-Westfalen [1984] Case 14/83 ECR 1891.
Determination
The Court determines that the complaint is well founded and orders the Respondent to:
1. Rescind any sanction that it imposed on the Complainant and to remove any reference to it from his personnel record;2. Pay the complainant the sum of €5,000 compensation for the breaches of Sections 17 and 26 of the Act; and
3. Comply with the provisions of the Act in respect of its scheduling of staff.
The Rights Commissioner’s Decision is set aside. The appeal is allowed.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
28th November 2012______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.