DWT12134

• • This case comes before the Court pursuant to Section 28(1) of the Organisation of Working Time Act 1997. Masterville Limited trading as Masterlink Logistics. (hereinafter referred to as “the Respondent” of “the Company”) is appealing against Rights Commissioner Decision No r-wt-7535-/09/MR.

    Background.

    The Complainant Mr Algirdas Ketis (hereinafter referred to as “the Complainant” or “the Worker”) worked for the Respondent as a driver from March 2006 until September 2008. He was paid €9.34 per hour for a standard week of 41.5 hours. Additional hours worked were remunerated at a premium rate.

    The Complainant submitted a complaint to the Rights Commissioner on the 4th February 2009. In it he alleged that his employer had breached sections 11,12,15 and 17 of the Organisation of Working Time Act 1977. The Rights Commissioner investigated the complaint on 22ndJanuary 2010. He issued his decision on the 28thFebruary 2012. He decided as follows:-

    “In accordance with Section 27 of the organisation of Working Time Act 1977, I hereby declare that Algirdas Ketis’s complaint under this Act was well-founded and I now require Masterville ltd to pay Mr Ketis compensation under the Act of €5,000, as above.”

    The Company is appealing against this decision to the Labour Court.

    The Labour Court considered the written and oral submissions of the parties at a hearing of the appeal on the 11thJuly 2012.

    At the commencement of the hearing the Respondent conceded that it had breached Sections 11 and 15 of the Act. It submitted, however, that the level of compensation awarded by the Rights Commissioner was excessive.

    The Respondent submits that the delay that occurred between the date of the hearing of the complaint by the Rights Commissioner and communication of his decision to the parties undermines the accuracy and reliability of the findings. The Court was referred to the decision in Kwamin v Abbey National plc 2004 ICR 844. The Court was also referred to Section 46 of the Civil Liability Act 2004 that seeks to maintain momentum in the process of delivering judgement in a timely manner. The Respondent further submitted that the Complainant had made exaggerated claims against the Company. The Respondent referred the Court to the provisions of Section 26 of the Civil Liability Act 2004 and to the decision of Quirke J in Farrell v Dublin Bus 2010 IEHC327. On that basis the Respondent submitted that this court should adopt a similar approach in this case.

    Position of the Parties

    Section 11

    The Complainant submits that contrary to the provisions of Section 11 of the Act he was not allowed a daily rest break of 11 hours on two occasions in the relevant time 09/09/08 and 16/09/08. He further submits that this pattern extended over a longer time period and cited further instances that occurred on 18/06/08, 19/06/08 and 25/06/08.

    The Respondent concedes that it breached Section 11 of the Act in the relevant time. The Respondent submits the breach was unintended and that Complainant participated in the breach in that he sought to work as many hours as were available and raised no objection to the unintended breach of Section 11.

    Findings of the Court

  
  Section 11 of the Act provides
  
  • • 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 Respondent admits the breach of the Act complained of. The Court finds that the obligation to comply with the provisions of the Act lies with the employer. The Court also takes the view that the legislation is in place to protect the safety and health of workers primarily but where driving vehicles in a public place is concerned there is an additional requirement on an employer to ensure that workers in charge of such vehicles are properly rested and fit to drive. Access to daily rest breaks is an important element of this obligation to workers and the general public and is viewed in that context by the Court.

    Determination

    The Court finds that the complaint is well founded and affirms the Decision of the Rights Commissioner.

    Section 12

    The Complainant submits that in the relevant time he did not, on occasions, receive breaks from work in accordance with the provisions of Section 12 of the Act. He submits that he was issued with a daily schedule of work that on occasions did not permit him to take his breaks. He further submits that he was given no document setting out his breaks and was no otherwise given any instructions regarding breaks. He submits that he completed no daily record of his breaks and had no requirement to notify his management if he did not have an opportunity to take his breaks.

    The Respondent disputed this complaint. The Respondent submitted that the Complainant had undergone induction training into the company during which he was advised as to the proper procedure to follow with regard to taking rest breaks. It submits that an analysis of the tachograph records show a pattern of vehicle idleness around lunchtime each day.

    Findings of the Court

    Section 12 of the Act provides:-

    Rests and intervals at work

  • 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)

    Section 25 of the Act provides

    25.—(1)An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of thisActare being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making.
    
    (2)The Minister may by regulations exempt from the application ofsubsection (1)any specified class or classes of employer and regulations under thissubsectionmay provide that any such exemption shall not have effect save to the extent that specified conditions are complied with.
    
    (3)An employer who, without reasonable cause, fails to comply withsubsection (1)shall be guilty of an offence.
    
    (4)Without prejudice tosubsection (3), where an employer fails to keep records undersubsection (1)in respect of his or her compliance with a particular provision of thisActin relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.
    

Section 15

The Complainant submits that, contrary to the provisions of Section 15 of the Act he worked in excess of an average of 48 hours per week in the relevant time.

The Respondent admits the breach of the Act.

Findings of the Court

From the records submitted to the Court it is clear that there was a consistent patter of weekly working hours in excess of an average 48 hours per week. The Court reiterates the views expressed in its findings in relation to the breach of Section 11 of the Act above.

Determination

The Court determines that the complaint is well founded and affirms the decision of the Rights Commissioner.

Section 17

Section 17 of the Act provides

Provision of information in relation to working time

• • 17.—(1)If neither the contract of employment of the employee concerned nor any employmentregulationorder, 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 tosubsection (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 thissubsectionreferred to as “additional hours”), the employer shall notify the employee, subject tosubsection (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 insubsection (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 insubsection (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 thissection, of the matters referred to insubsection (1) or (2), as the case may be, shall not prejudice the right of the employer concerned, subject to the provisions of thisAct, to require the employee to start or finish work or, as the case may be, to work the additional hours referred to insubsection (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 insubsection (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.
    
  • The Complainant that the start and finish times of his working day varied from day to day and that, contrary to the provisions of Section 17 of the Act he did not receive 24 hours notice such varied times or of additional hours he was required to work.

    The Respondent submits that it gave the complainant as much notice as possible of changes to shift commencement and finish times. It further submits that the company was engaged in the delivery of goods to customers and finish times were determined by their capacity to receive the goods and driving conditions on the day.

    Findings of the Court

    The Court notes that there was at times variation in finish times that is consistent with normal delays that would occur in any company that delivers goods to customers. These finish times are clustered around a standard finish time of 6 p.m. However there are, in the relevant time, other occasions where the finish time in substantially later than that. The Respondent gave no explanation of the reason for those late finish times. Neither did it submit that it had, on those occasions, given the Complainant 24 hours notice of the additional hours required. Furthermore the Respondent did not avail of the provisions of Section 5 of the Act to discharge its obligations under subsections (1) and (2) of the Act.

    Determination

    Accordingly the Court determines that the complaint is well founded and affirms the decision of the Rights Commissioner.

    The Court considered the complaints made in this case de novo and did not rely on the submissions made or evidence presented to the Rights Commissioner in and heard. Both parties were legally represented at the hearing of the matter. Accordingly the delay that arose in the matter when it came before the Rights Commissioner did not affect the Court in its dealing with the case.

    The Court further considered the complaints made by the Complainant and finds that he did not overstate them in his submissions to this Court. Furthermore the matter does not come before the Court pursuant to the provisions of the Civil Liability Act 2004. In light of this the Court finds that the complaints are properly before it, have been reasonably represented to the Court and no public policy issue arises arise regarding misrepresentation or exaggeration of claims.

    Determination

    The Court finds the complaints made under Sections 11,12, 15 and 17 of the Act are well founded. The Court affirms the Decision of the Rights Commissioner and awards the complainant compensation in the sum of €5,000

    The Court so Determines.