FULL RECOMMENDATION
SECTION 28(8), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : LAOIS COUNTY COUNCIL - AND - MR PAUL DELANEY (REPRESENTED BY WHITE O' DONOGHUE AND COMPANY SOLICITORS) DIVISION : Chairman: Mr Duffy Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Alleged non-implementation of Rights Commissioner's Decision r-097205-wt-10/TB.
BACKGROUND:
2. The Worker referred his case to the Labour Court on the 1st February, 2013, in accordance with Section 28(8) of the Organisation of Working Time Act, 1997.
DETERMINATION:
This matter came before the Court by way of a complaint by Mr Paul Delaney (the Claimant) that his employer, Laois County Council (the Respondent), failed to implement the decision of a Rights Commissioner given under the Organisation of Working Time Act 1997 (the Act).
The Claimant is employed by the Respondent as a water and sewerage caretaker. He is required to attend at work seven days per week. He complained that the Respondent contravened s.13(2) of the Act which requires, in effect, that an employer grant to an employees, in each period of seven days, a rest period of at least 24 consecutive hours.
The Rights Commissioner appears to have accepted that the Claimant, by virtue of the work that he performs, is exempt from the requirement of s.13 of the Act pursuant to the Organisation of Working Time (General Exemptions) Regulations 1998 (S.I. No.21/1998. Regulation 4 of these regulations provides: -
If an employee is not entitled, by reason of the exemption, to the rest period and break referred to in sections 11, 12 and 13 of the Act, the employer shall ensure that the employee has available to himself or herself a rest period and break that, in all the circumstances, can reasonably be regarded as equivalent to the first-mentioned rest period and break.
The Rights Commissioner’s decision is in the following terms: -
- I uphold the complaint that the Council is in breach of the Organisation of Working Time Act and I require them to grant the claimant compensatory rest as required by the legislation. This should be done in consultation with the claimant and his representatives. I further require them to pay the claimant €5,000 in compensation.
Section 28(8) of the Act (as amended by s.19 of the Protection of Employees (Fixed-Term Work) Act 2003) provides: -
- Where a decision of a rights commissioner in relation to a complaint under this Act has not been carried out by the employer concerned in accordance with its terms, the time for bringing an appeal against the decision has expired and no such appeal has been brought, the employee concerned may bring the complaint before the Labour Court and the Labour Court shall, without hearing the employer concerned or any evidence (other than in relation to the matters aforesaid), make a determination to the like effect as the decision.
The Respondent contends that it has complied with the decision of the Rights Commissioner. In accordance with s.28(8) of the Act the only question before the Court is whether the Respondent has complied with the decision of the Rights Commissioner. That in turn raises the question of whether the Claimant’s revised attendance pattern complies with Regulation 4 of S.I. 21/1998.
The Claimant finishes work at 2.30 pm on Fridays. He recommences work at 8am on the following Saturday. He thus has a rest period of 17.5 hours. He finishes work at 11 am on Saturdays and recommences work at 11 am on the following Sunday. He thus has a rest period of 24 hours.
The Claimant contends that the rest period of 24 hours should be preceded by a rest period of 11 hours, as is required by s.13(2) of the Act. However the Claimant is exempt from the requirements of s.13 and what the law requires is that he be provided with a rest period and breaks that, in all the circumstances, can reasonably be regarded as equivalent to the rest period and breaks to which he would otherwise be entitled. In this context, all of the circumstances includes the exigencies of the job that the Claimant is employed to perform. He obtains a rest period of 17.5 hours between finishing work on Fridays and recommencing work on Saturdays. He works for three hours and then has a rest period of 24 hours. In the Court’s view this pattern can, in all the circumstances, reasonably be regarded as equivalent to the rest period normally required by s.13(2) of the Act.
Determination
For the reasons set out above the Court is satisfied that the Respondent has complied with the decision of the Rights Commissioner. The Court makes no further order in the case.
Signed on behalf of the Labour Court
Kevin Duffy
4th June, 2013______________________
JMcCChairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.