DWT13107

FULL RECOMMENDATION

WTC/13/52

DETERMINATIONNO.DWT13107

(R-126084-WT-12/MMG)

SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997

PARTIES :

UNIVERSAL LIGHT CATERING LTD
(REPRESENTED BY DONAL M GAHAN SOLICITORS)

- AND -

MS MARIA ZAKRZEWSKA
(REPRESENTED BY PADRAIG MURPHY SOLICITOR)

DIVISION :

Chairman: Mr Hayes
Employer Member: Ms Doyle
Worker Member: Ms Tanham

SUBJECT:
1. A cross appeal of a Rights Commissioner’s Decision r-126084-wt-12/MMG.

BACKGROUND:

2. A Rights Commissioner hearing took place on the 11^thDecember 2012, and a Decision was issued on the 21^stFebruary 2013.

The Worker appealed the Decision of the Rights Commissioner to the Labour Court on the 25^thFebruary 2013, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997.

The Employer appealed the Decision of the Rights Commissioner to the Labour Court on the 21^stMarch 2013, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997.

A Labour Court hearing took place on the 24^thJuly 2013.

DETERMINATION:

This is an appeal under Section 28(1) of the Organisation of Working Time Act 1997 (the Act) by Ms Maria Zakrzweska (the Complainant) and a cross appeal by Universal Light Catering ltd (the Respondent), against Rights Commissioner Decision No r-126084-wt-12/MMG delivered on the 21 March 2013. The Complainant appealed against the quantum awarded. The Respondent appealed against the substantive decision and the quantum awarded by the Rights Commissioner.

Background

The Respondent operates a restaurant in the Temple Bar area of Dublin City. The Complainant was employed by the Respondent as a member of the floor staff in the restaurant. Her employment commenced on 19 March 2012 and terminated on 29 July 2012. On the 10^thSeptember 2012 the Complainant initiated Complaints with the Labour Relations Commission against the Respondent in which she alleged that her rights under Sections 12, 13, 14, 17, 19 and 21 of the Act had been infringed. The Rights Commissioner, on the 11^thDecember 2012, in accordance with Section 27 of the Act conducted an investigation into those complaints. The Rights Commissioner in decided

“….. the claimant has presented a valid complaint. It is noted that there were no official records in relation to breaks, that there was no specific notification in relation to Sundays and no Sunday premium paid and that overtime was worked on an as needs basis. It is my decision therefore that the claimant be awarded the sum of €1000 to be paid by the respondent for the breaches of the Organisation of Working Time Act.”

The Appeal came on for hearing on the 24^thJuly 2013. Both parties attended and were represented at the hearing.

Complaints

Section 12

The Complainant submits that rest periods and breaks at work were irregular, unpredictable, of an indeterminate duration and that she was at all times liable to be, and in fact was, recalled to work in the course of the break. She submits that such a break does not comply with Section 12 of the Act. Accordingly she submits that the Respondent infringed her rights under Section 12 of the Act.

The Respondent submits that the Complainant was allowed take breaks from work in compliance with the provisions of Section 12 of the Act. It acknowledges that the times at which breaks were taken was dictated by the flow of business within the restaurant. It maintains, however, that this had the effect of changing the times of the breaks but not of depriving her of her entitlement under the Act.

Findings of the Court

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) Counsel for the Respondent told the Court that it did not have records of the Complainants break times. He further told the Court that it did not have records within the meaning of Section 25 of the Act. In any case no records of Section 12 breaks taken by the Complainant were presented to the Court.

As the Respondent did not produce any records or provide any other evidence of compliance with Section 12 of the Act the Court finds that the Complaint is well founded.

Determination

The Complaint is well founded. The Court orders the Respondent to pay the Complainant compensation in the sum of €750 for infringing her rights under Sections 12(1) and 12(2) of the Act.

Section 13.5

The Complainant submits that her Contract of Employment made no provision for Sunday to be included in her standard working week. She submits that she was entitled to be scheduled to rest on Sunday. She submits that, contrary to Section 13 of the Act, she was scheduled to work on Sunday. She submits that this amounts to an infringement of her rights under Section 13 of the Act.

The Respondent concedes that the Complainant’s Contract of Employment made no provision for Sunday to be included in the Complainant’s standard working week. It concedes that it infringed the provisions of Section 13 of the Act by scheduling the Complainant to work on Sunday and thereby depriving her of her entitlement to rest on that day.

Findings of the Court

Section 13 of the Act provides

13.
- (1) In this section “daily rest period” means a rest period referred to in section 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.

Section 13(2) of the Act provides that and employer allow an employee a rest period of 24 hours in any period of seven days. Section 15 (5) provides that such a rest period must, unless “otherwise provided for in the employee’s contract of employment” include a Sunday. In this case the Complainant’s contract of employment made no such provision. Accordingly the Respondent must grant the Complainant Sunday as a rest day. Failure to do so amounts to an infringement of the Act. The Respondent confirmed to the Court that it required the Complainant to work on 10 of the 19 Sundays during the period when she worked for the company.

Determination

The Respondent infringed Section 13(5) of the Act and thereby infringed the Complainant’s entitlement to rest on Sunday. The Court orders the Respondent to pay the Complainant compensation in the sum of €1000 compensation for infringing her rights under Section 13 of the Act.

Section 14

The Complainant submits that she did not receive a premium for working on Sunday. The Respondent concedes that the Complainant was not paid a premium for work she performed on Sunday. The Respondent confirms that the Complainant was at all times paid minimum wage in respect of each hour she worked for the company.

Findings

Section 14 of the Act provides

14. (1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely—

(a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or
(b) by otherwise increasing the employee's rate of pay by such an amount as is reasonable having regard to all the circumstances, or
(c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or
(d) by a combination of two or more of the means referred to in the preceding paragraphs

Section 14 places an obligation on an employer to pay compensation for work performed on Sunday. The Respondent concedes that it did not meet its obligations in this regard. Accordingly the Court determines that the compliant is well founded.

Determination

The Court determines that the Complaint is well founded. In the circumstances of this case, the Court orders the Respondent to pay the Complainant compensation in the sum of €1,000 for the infringement of her rights under Section 14 of the Act.

Section 17

The Complainant submits that, contrary to Section 17 of the Act, she was not notified of her finish times on a number of occasions during the course of her employment. The Respondent provided copies of the Complainant’s work rosters and submits that they demonstrate that the Complainant was at all times aware of her start and finish times at the commencement of each working week.

Findings

Section 17 in relevant part 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 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.

The contract of employment did not specify specific hours of work. However the Respondent provided the Complainant with rosters one week in advance that set out her schedule including her start and finish times each day. From an examination of the Rosters the Court notes that the Complainant was regularly scheduled to work from an identified commencement times until “close”. “Close” is not defined in the roster but both parties confirmed to the Court that it could be anytime between 11:30 and 12:30 am. The actual closing time depended on the how busy the restaurant was each day.

On the basis of the information before it, the Court finds that the Complainant was aware that her finishing time on those days was 12:30 and that she might, if business was slack, have an earlier finish.

Determination

In all the circumstances therefore the Court finds that the Complainant’s rights under Section 17 of the Act were not infringed in this case.

Section 19

The Complainant states that she did not receive her full statutory holiday entitlement for the relevant leave year during which she worked for the Respondent. The Respondent denies this and produced evidence to the Court that recorded cessor payment in respect of the Complainant’s holiday entitlement.

Findings of the Court

Section 19 of the Act states

(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal 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):
  Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.

The Complainant asserts that she did not receive her full holiday entitlement. However she adduced no evidence in support of this assertion. At no stage was she in a position to identify the holidays she had taken or to identify any payments she received in respect of those days. Moreover she did not contest the amount of cessor pay she received, that included payment in respect of outstanding holidays, nor did she produce evidence to the Court to supplement the assertion she made regarding the alleged underpayment in respect of annual leave entitlements.

The Court finds that the Complainant has not established a prima facie case that her entitlements under this section were infringed. From an examination of the hours worked and the monies paid by the Respondent to the Complainant at the termination of her employment, the Court finds that the Complaint under Section 19 of the Act has not been made out and accordingly is not well founded.

Determination

The Complaint is not well founded.

Section 21

The Complainant submits that the Respondent failed to pay her for public holidays in accordance with the provisions of Section 21 of the Act in respect of the hours she worked on Easter Monday 2012, the June Public Holiday in 2012 and the May Public Holiday in 2012. She is claiming that she was underpaid in the amount of €75.84 in respect of those days.

The respondent accepts that it owes the Complainant €75.84 in respect of the hours she worked on those days.

Findings

The Court finds that the Respondent infringed the Complainants entitlement to payment in respect of Public Holidays.

Determination

The Court orders the Respondent to pay the Complainant compensation in the sum of €250 for the breach of her entitlements under Section 21 of the Act.

Determination

In summary the Court determines that the Respondent has, in respect of the Complainant, infringed sections 12, 13, 14 and 21 of the Act. The Court orders the Respondent to pay the Complainant compensation in the sum of €3,000 as set out above. The Court finds that the Complaints under sections 17 and 19 of the Act are not well founded.

The Rights Commissioner’s decision is set aside.

The Court so determines.

Signed on behalf of the Labour Court

Brendan Hayes
CR______________________
2nd August, 2013.Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.