FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : ARCWELL DEVELOPMENTS LTD (REPRESENTED BY FRANCIS BROPHY & CO.) - AND - MR NERIJUS ZALECKIS (REPRESENTED BY RICHARD GROGAN & ACCOCIATES) DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner's Decision r-074798-wt-09/GC.
BACKGROUND:
2. The Worker appealed the Rights Commissioner's Decision to the Labour Court on the 3rd October, 2012. A Labour Court hearing took place on the 17th January, 2013. The following is the Labour Court's Decision:-
DETERMINATION:
Mr Nerijus Zaleckis (the Complainant) was employed by Arcwell Developments Limited as a construction worker from the 21stMay 2007 until the 6thAugust 2008. On the 4thFebruary 2009 he submitted a complaint to the Rights Commissioner under section 27 (1) of the Organisation of Working Time Act 1997. He complained that the Respondent had infringed his rights and entitlements under Sections 11, 15, 17 and 20 of the Act. In a written decision issued on the 30thAugust 2012 the Rights Commissioner decided that none of the complaints was well founded. By way of notice dated 2ndOctober 2012 received by the Labour Court on the 9thOctober 2012 the Complainant appealed against the Rights Commissioner decisions to the Labour Court. The case came on for hearing before the Labour Court on the 17thJanuary 2013.
The Complainant offered no evidence to the Court regarding the appeals against the Rights Commissioners decisions on the complaints that his entitlements under sections 11 and 17 of the Act had been infringed. The Complainant made submissions regarding the complaint that the Respondent had infringed the provisions of Sections 15 and 21 of the Act.
Complaint No 1: Infringement of Section 15 of the Act
Section 15 of the Act provides:
- (1) An employer must not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period”) that does not exceed—
- (a) 4 months,
The Complainant submits that he was required to work an average of 51 hours per week. The Respondent produced records to the Court the purported to show that the Complainant did not work an average of more than 48 hours calculated over the “reference period”.
Findings of the Court
The provisions of Section 15 of the Act are set out above. The section provides that an employee may not be permitted to work an average, calculated over a “reference period” of 4 months, of more than 48 hours in any period of 7 days. Section 25 of the Act provides:
(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 this Act [and, where applicable, the Activities of Doctors in Training Regulations] are 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 of subsection (1) any specified class or classes of employer and regulations under this subsection may 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 with subsection (1) shall be guilty of an offence.
(4) Without prejudice to subsection (3) , where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act [or the Activities of Doctors in Training Regulations] in 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.
In this case the Respondent admits that it did not keep records in the prescribed format. However it did keep records of hours worked and relied on these for the purposes of calculating weekly pay. The Respondent submitted detailed spread sheets setting out details of the hours the Complainant worked and the pay he received in respect of the hours worked.
In considering the matter before it the Court notes that the Complainant ceased working for the respondent on the 6thAugust 2008. He submitted his complaint to the Rights Commissioner on the 4thFebruary 2009. Section 27 of the Act provides:
- (2) An employee or any trade union of which the employee is a member, with the consent of the employee, may present a complaint to a rights commissioner that the employee's employer has contravened a relevant provision in relation to the employee and, if the employee or such a trade union does so, the commissioner shall give the parties an opportunity to be heard by the commissioner and to present to the commissioner any evidence relevant to the complaint, shall give a decision in writing in relation to it and shall communicate the decision to the parties.
(3) A decision of a rights commissioner under subsection (2) shall do one or more of the following:
(a) declare that the complaint was or, as the case may be, was not well founded,
(b) require the employer to comply with the relevant provision,
(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the employee's employment, and the references in the foregoing paragraphs to an employer shall be construed, in a case where ownership of the business of the employer changes after the contravention to which the complaint relates occurred, as references to the person who, by virtue of the change, becomes entitled to such ownership.
(4) A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the
period of 6 months beginning on the date of the contravention to which the complaint relates.
(5) Notwithstanding subsection (4) , a rights commissioner may entertain a complaint under this section presented to him or her after the expiration of the period referred to in subsection (4) (but not later than 12 months after such expiration) if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause.
(6) A complaint shall be presented by giving notice thereof in writing to a rights commissioner and the notice shall contain such particulars and be in such form as may be specified fromtimetotimeby the Minister.
(7) A copy of a notice under subsection (6) shall be given to the other party concerned by the rights commissioner concerned.
(8) Proceedings under this section before a rights commissioner shall be conducted otherwise than in public.
(9) A rights commissioner shall furnish the Labour Court with a copy of each decision given by the commissioner under subsection (2) .
(10) The Minister may by regulations provide for any matters relating to proceedings under this section that the Minister considers appropriate.
Section 27(4) of the Act provides that the Court can only entertain complaints submitted to the Rights Commissioner within six months of the date of the Complaint. Section 27(5) of the Act permits the Court to extend the period of time for bringing complaints. However the Complainant did not invoke the provisions of Section 27(5) of the Act. Accordingly the provisions of section 27(4) apply in this case.
Accordingly the Court may consider complaints that occurred between the 5thand 6thAugust 2009. As the relevant period that the Court may consider does not extend beyond one day the Court can identify no basis on which it can investigate the Complaint that a breach of the Act occurred over the period of time provided for in Section 15 of the Act.
Determinationof the Court regarding Complaint No 1
On the evidence before it the Court finds that the Complainant, in the relevant “reference period” was not required to work an average of more than 48 hours in a period of 7 days on that day. The complaint is not well founded. The decision of the Rights Commissioner is upheld.
Complaint No 2 infringement of Section 20(2) of the Act
The Complainant submits that as he was employed as a construction worker he comes within the scope of the Registered Agreement for the Construction industry (the Agreement). He submits that as a matter of law the rate of pay set out in the Agreement are substituted for any lesser rate of pay set out in his contract of employment. He submits that he was paid €720 per week but that as he was working an average of 51 hours per week he had an entitlement to €877.92 per week holiday pay. He submits therefore that the Respondent has infringed his entitlements under Section 21 of the Act.
The Respondent submits that the Complainant was paid the rate of pay set out in the Agreement in respect of all hours worked. It submitted documents outlining details of the Complainants weekly pay and hour’s worked in respect of his entire period of employment with the Company. It asserts that an analysis of the figures demonstrates that the Complainant was paid holiday pay in compliance with the terms of the Agreement and of the Act.
Section 20(2) of the Act in relevant part provides:
- (2) The pay in respect of an employee's annual leave shall—
(a) be paid to the employee in advance of his or her taking the leave,
(b) be at the normal weekly rate or, as the case may be, at a rate which is proportionate to the normal weekly rate, and
It is common case that the Complainant was employed as a construction worker and his employment came within the scope of the Agreement. The issue before the Court therefore is essentially one of fact. The Respondent told the Court that he did not keep records in accordance with the provisions of Section 25 of the Act. Accordingly the burden of proving compliance with the Act lies with the Respondent.
The Respondent presented records that purported to show the complainant’s hours worked and rate of pay for each week of his employment. They itemised the hours he worked that attracted payment at flat time, time and a half and at double time in respect of each week of his employment.
Determination of the Court regarding Complaint No 2
The Court has examined these figures and finds them compelling evidence of compliance with the pay provisions of the Agreement in respect of the work done by the Complainant. On this basis the Court finds that the Complainant was paid his holiday pay in accordance with the provisions of Section 20(2) of the Act. The Complaint is not well founded. The Decision of the Rights Commissioner is upheld. The appeal is rejected.
Determination:
Having considered the extensive written and oral submissions of both parties to the appeal the Court upholds the Decision of the Rights Commissioner. The appeal is rejected. The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
19th February, 2013______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.