FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : ANORA COMMERICAL LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - REGINA STASYTIENE (REPRESENTED BY RICHARD GROGAN & ASSOCIATES, SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal against Rights Commissioners Decision r-130146/130148/130149-wt-13/MMG.
BACKGROUND:
2. The Worker appealed the Rights Commissioner's Decision to the Labour Court on the 24th June, 2013. A Labour Court Hearing took place on 27th August, 2013. The following is the Labour Court's Determination:-
DETERMINATION:
The Claimant brought a complaint before a Rights Commissioner pursuant to the Organisation of Working Time Act 1997 (the Act) alleging a breach of Sections 18 of the Act. The Rights Commissioner found that the Claimant had not presented a valid complaint and therefore her claim failed. The Claimant appealed the Decision.
The Claimant has been employed since 6thApril 2009 working 39 hours per week. She is currently employed as a Restaurant/Accommodation Supervisor.
Mr. Richard Grogan, Solicitor, on behalf of the Claimant, stated that following a period of authorised leave the Claimant was available to work from 5thJanuary 2013 and was not permitted to do so. She submitted her claim under the Act to the Rights Commissioner on 15thJanuary 2013.
Mr. Michael McGrath, IBEC, on behalf of the Employer, disputed the Claimant’s contention and held that she was not on a zero-hours contract.
At the outset of the hearing the Court sought clarity on the provision of the Act relied upon. Mr. Grogan in his submission to the Court stated that it was never claimed that the Claimant was on a zero-hours contract, however, it was submitted that under the provisions of the Section 18 of the Act the Claimant was available for work but not provided with work.The Court, in the course of the hearing, invited Mr. Grogan to address the statutory basis on which he contended that the Claimant was encompassed by the provisions of Section 18. He stated that as the Claimant was required to make herself available for 39 hours per week and was not provided with such work then the Employer was in breach of the Act.
Section 18 of the Act provides protection for Employees working on zero-hours contracts i.e. a zero-hours contract of employment is a type of employment contract where an Employee is available for work but with no specified hours of work. It applies where a formal arrangement is in place where Employees are required to be available for a certain number of hours per week or when required or a combination of both. Employees on zero-hours contracts are protected by the Act but such protection does not apply to casual employment. The Act states:-
18.—(1) This section applies to an employee whose contract of employment operates to require the employee to make himself or herself available to work for the employer in a week—- (a) a certain number of hours (“the contract hours”), or
(b) as and when the employer requires him or her to do so, or
(c) both a certain number of hours and otherwise as and when the employer requires him or her to do so,
and the said requirement is not one that is held to arise by virtue only of the fact, if such be the case, of the employer having engaged the employee to do work of a casual nature for him or her on occasions prior to the said week (whether or not the number of those occasions or the circumstances otherwise touching the said engagement of the employee are such as to give rise to a reasonable expectation on his or her part that he or she would be required by the employer to do work for the employer in the said week).- (a) a certain number of hours (“the contract hours”), or
The Court rejects the Claimant’s appeal of the Rights Commissioner's Decision, concurs with the findings of the Rights Commissioner and upholds his Decision.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
30th August, 2013______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.