FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : DONNELLY FRUIT AND VEG (REPRESENTED BY MSS) - AND - DAINES GERMOVS (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Ms Tanham |
1. Appealing against Rights Commissioner's Decision r-107581-wt-11/MMG.
BACKGROUND:
2. A Rights Commissioner hearing took place on 16th September 2011 and the following Decision was issued on the 31st August 2012:
- "The [Employer] produced satisfactory records to refute the [Worker's] complaints. Accordingly it is my decision that the [Worker's] case fails."
The Worker appealed the Decision of the Rights Commissioner to the Labour Court on the 7th September 2012, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 11th December 2012.
DETERMINATION:
Daines Germovs (the "Complainant") has brought this appeal pursuant to s. 28(1) of the Organisation of Working Time Act 1997 (the "Act") against Decision r-107581-wt-11/MMGF of the Rights Commissioner made on 31stAugust 2012 (the "decision").The Rights Commissioner decided that complaints made pursuant to sections 11,12,15 and 17 of the Act were not well-founded. He found against the complainant. The complainant appealed against those decisions to the Labour Court. The case came on for hearing on Tuesday 11 December 2012.
At the start of the Hearing Mr Grogan, solicitor for the Complainant withdrew the appeals against the Rights Commissioner’s decisions regarding the alleged infringements of sections 12 and 15 of the Act. He told the Court he wished to proceed with the appeals regarding the infringements of the complainant’s entitlements under sections 11 and 17 of the Act. The Complainant worked as a truck driver for Donnelly Fruit and Veg (the “respondent”) from 1 November 2006 until he was dismissed on 7 March 2011.
Section 11 Complaint
It is common case that the respondent on 4 occasions in the relevant period infringed the complainant’s entitlement to a daily rest period of 11 hours in any period of 24 hours. The respondent submits that the breaches were unintended and that it has put procedures in place to ensure that there could be no repetition of such an oversight. Details of the procedures were out lined to the Court. Mr Grogan acknowledged that the breaches were not frequent and involved minor infringements of the complainant’s entitlements. However he argued that they nevertheless amounted to an infringement of the complainant’s entitlements, related to matters of safety health and welfare at work and could not go unaddressed.
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.
It is common case that the respondent, on four occasions in the relevant period, infringed the complainant’s entitlement to 11 hours consecutive hour’s rest in each period of 24 hours during which he worked for his employer. The Court notes that the respondent has now put procedures in place to eliminate the possibility of a future infringement of the section.
Determination
On the basis of the evidence before it the Court sets aside the Rights Commissioner’s decision and allows the appeal.
Section 17 Complaint
Mr Grogan stated that the complaint relates exclusively to additional hours worked by the complainant. Mr Grogan states that the respondent did not give the complainant 24-hour’s notice of his shift start and finishing times when engaged on such work. He stated that the complainant was requested to work additional hours (details supplied to the Court) on a number of occasions in the relevant period. He states that he was on no occasion notified of a normal finishing time on any of those occasions. He argues that this amounted to an infringement of the Complainant’s entitlements under section 17 (2) of the Act.
The respondent argues that the complainant started work each morning at a set time and finished in and around the same time each day. He argued that as the complainant was employed as a lorry driver his finish time was contingent upon a number of factors that were outside the company’s control. He instanced traffic congestion and weather as examples of such external events. He stated that these factors were taken into account to the maximum extent possible when calibrating the complainant’s workload. In this context he argues that the complainant’s work was organised so as to ensure that his actual and scheduled finishing time were reasonably aligned. It this way everything possible was done to ensure that the company complied with the provisions of section 17(1) of the Act.
He further argued that the complainant was not “required” to work additional hours. He did so voluntarily and accordingly does not come within the scope of section 17(2) of the Act. He submits therefore that no breach of the section occurred.
Findings of the Court
Section 17 of the Act provides
- 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.
Section 17(2) refers to hours the employee is “required to work” by his employer. In this case the complainant admits that he was not “required” to work such hours. In the course of the hearing it emerged that he worked additional hours at his absolute discretion and no pressure was brought to bear on him when he refuse to do so. Accordingly the Court finds that the complainant was not “required” to work additional hours within the meaning of section 17(2) of the Act. The Court determines that the complaint is not well founded and upholds the Rights Commissioner’s decision in this regard.
Determination
The Court determines that the complaint under section 11 of the Act is well founded and allows the appeal. The Court further determines that the complaint under section 17(2) of the Act is not well founded and does not allow the appeal in this regard. In determining the level of compensation to award the Court must take note decision of the CJEU (formally the ECJ) inCase C-14/83Von Colson and Kamann v Land Nordrhein – Westfalen[1984].In this regard the Court notes that the complainant’s representative accepts that the infringements of the Act were isolated and minor in nature. The Court also notes that he accepts that the respondent has put arrangements in place to prevent a recurrence of such an infringement of section 11. Accordingly, the Court, having taken all relevant factors into account, awards the complainant €250 compensation for the infringement of his entitlements under section 11 of the Act.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
14th January, 2013______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.