FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : LEVET LIMITED TRADING AS FAST FIT (REPRESENTED BY PATRICK F O' REILLY & CO. SOLICITORS) - AND - TOMAS SAULYS (REPRESENTED BY MAGUIRE MCNIECE & COMPANY, SOLICITORS) DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Ms Tanham |
1. Appealing against a Rights Commissioner's Decision r-130283-wt-13/EH.
BACKGROUND:
2. 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 31st May 2013. The Court heard the appeal on the 30th August, 2013 and the hearing was concluded on 15th November, 2013.
DETERMINATION:
This is an appeal by Tomas Saulys (the Complainant) under Section 28(1) of the Organisation of Working Time Act 1997 (the Act) against Rights Commissioner Decision no. r-130283-wt-13/EH issued on 24 April 2013.
The Rights Commissioner decided that Levet Limited trading as Fast Fit (the Respondent) infringed Section 12(1) of the Act and awarded the Complainant compensation in the sum of €750.
The Complainant appealed to this Court against the quantum awarded by the Rights Commissioner.
The case came on for hearing before the Court on 30th August 2013 and was adjourned to allow both parties make further legal submissions on a preliminary issue. The case finally came on for hearing before the Court on 15th November 2013
Background
The facts regarding the Complainant’s employment history are not in dispute. The Respondent employed the Complainant on 29th December 2009. His employment terminated on 17th September 2012.
After the termination of his employment the Complainant submitted a complaint to the Rights Commissioner under the Act in which he complained that the Respondent infringed Section 12 of the Act by failing provide him with breaks in accordance with Section 12(1) of the Act. The Rights Commissioner found that the complaint was well founded in part and awarded the Complainant compensation of €750.
The Complainant appealed against that Decision in relation to quantum only. The Respondent did not appeal against the Decision of the Rights Commissioner.
In his appeal the Complainant argues that Statutory Instrument 57/1998 Organisation of Working Time (Breaks at Work for Shop Employees) Regulations 1998, applies in this case and that the Rights Commissioner failed to take this into account when deciding the matter. The Respondent argues that the Respondent’s business is not a shop for the purposes of the Statutory Instrument (S.I.) and that it has no application in this case.
Neither side appealed against the Decision of the Rights Commissioner in respect of the substantive breach of Section 12 of the Act.
Findings of the Court
The Complainant asks the Court to revisit the Decision of the Rights Commissioner in the context of S.I. 57/1998 and to adjust the level of compensation awarded to the Complainant. The Court, in this context has been invited to examine the extent to which S.I. 57/1998 applies to the business carried out by the Respondent.
The Court has examined the matter and has decided that the issue the Court has been asked to decide is moot in this case. S.I. 57/1998 governs the length of breaks from work that apply to shop workers. Specifically it provides that employers are required to provide shop workers a break of one hour where certain conditions are met. This Worker however no longer works for the Employer. His employment was terminated before he made a complaint to the Rights Commissioner in respect of the breach of Section 12 of the Act. Accordingly the Court can do nothing other than award the Complainant compensation in respect of the acknowledged breach of Section 12 of the Act. The breach of Section 12 is the infringement of the Act that occurred. It occurred whether the Complainant comes within the scope of S.I. 57/1998 or not as the provisions of Section 12 of the Act provide for a lesser level of breaks from work than those provided for in S.I. 57/1998. Moreover, Section 12 of the Act transposes the provisions of [Article 4 of Directive ] into Irish law. That Directive provides for levels of breaks at work consistent with the protection of the health and safety of Workers at work. The provisions of S.I. 57/1998 amounts additional provisions that apply in one sector of the economy and that are not related to health and safety at work or to the protection of Workers. Accordingly, the Court is of the view that an infringement of Section 12 of the Act that offends against the right of Workers to safe and healthy working conditions has a higher order of importance that an infringement against a provision that does not compromise safety and health in such a manner.
Accordingly, the Court takes the view that in addressing the breach of the health and safety provisions set out in Section 12 of the Act the Court has by implication addressed the breach of any other Section of the Act that provides for breaks at work that have no comparable importance for Workers. This is particularly the case where the Complainant no longer works for the Respondent and accordingly no ongoing breach of the Act can arise in this case. The Court might take another view of the matter were the Complainant still employed by the Respondent as it would be necessary in that case to ensure that no ongoing infringement of the Act was taking place and to instruct the Respondent accordingly. However, that does not arise in this case.
The Court takes a very serious view of any infringement of a Health and Safety provision that is designed to protect Workers. In this case the Respondent has been found to have infringed the provisions of Section 12 of the Act. The Respondent has not appealed against that Decision and by implication has accepted the findings of the Rights Commissioner. In the Course of the hearing of the Complaint counsel for the Complainant confirmed to the Court that the quantum awarded by the Rights Commissioner in respect of the breach of Section 12 of the Act was adequate. He argued that an additional amount should be awarded in respect of the breach of Section 12 of the Act as amended by S.I. 57/1998. The Court considers this approach on the part of the Complainant to be misconceived. The infringement of Section 12 of the Act is the more serious breach as it compromises the safety and health of the Worker affected. Accordingly, the Court finds that the Decision of the Rights Commissioner was correct in this case and is upheld.
Determination
The Decision of the Rights Commissioner is affirmed. The appeal is not allowed. The Court so Determines.
Signed on behalf of the Labour Court
Brendan Hayes
4th December, 2013______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.