FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : BALLINALARD TRANSPORT LTD - AND - KONSTANTIN AGASKOV (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner's Decision r-121382-wt-12/GC.
BACKGROUND:
2. A Rights Commissioner hearing took place on the 9th October 2012 and a Decision was issued on the 18th October 2012. The Worker appealed the Decision of the Rights Commissioner to the Labour Court on the 22nd November 2012, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 7th March 2012.
DETERMINATION:
This is an appeal under Section 28(1) of the Organisation of Working Time Act 1997 (the Act) by Mr Konstantin Agaskov (the Complainant) against Rights Commissioner Decision No r-121382-wt-12/GC issued on 18 October 2012. The Complainant submitted his appeal to the labour Court on 22 November 2012. The case came on for hearing on 7 March 2013.
Ballinalard Transport Ltd (the Respondent) is a long haul transport company based in County Tipperary. The Complainant commenced working for the Respondent, as a long distance driver, on 28 March 2010. His employment was interrupted for roughly 6 weeks commencing on 17 September 2011 when he returned home to Lithuania to attend to family matters. He returned to Ireland on 14 November 2011 and took up employment again with the Respondent.
The Company argues that the Complainant’s employment was terminated in September 2011 and that he was employed as a new employee when he returned to Ireland in November 2011. The Complainant argues that his employment was not terminated in September 2011, that he did not receive his P45 at that time and that he resumed his employment on his return to Ireland in November 2011. He argues that he was continuously employed from March 2010 until his employment was terminated on 17 December 2011.
On 6 February 2012 he submitted a complaint to the Labour Relations Commission under Section 27 of the Act. He complained that the Respondent had, in the course of his employment, failed to comply with Sections 11,12,13,14, 19, 21 and 22 of the Act.
The Rights Commissioner investigated the complaint on 9thOctober 2012. The Complainant did not attend at the hearing. The Rights Commissioner decided that 'the complaint falls for lack of prosecution'.
The Complainant appealed against that decision to this Court under section 28(1) of the Act.
Preliminary Issue
The Complainant argues that he was employed continuously between March 2010 and December 2011. He submits that he was required to attend to a personal matter in Lithuania in September 2011 and that he was granted unpaid leave of absence to do so. He submits that he returned to Ireland some eight weeks later and resumed work on the same terms and conditions of employment as those on which he worked before he commenced his leave of absence. He submits that Respondent did not formally terminate his employment by issuing him with a P45 or otherwise giving him notice of the termination of his employment.
The Respondent submits that the Complainant resigned his position to return to Lithuania to attend to some personal business. It submits that it told the Complainant that it would consider an application for re-employment from him on his return. It submits that when he returned the Company had a vacancy at that time and accordingly offered him employment. It submits that he signed a new contract of employment at that time. It argues that the Complainant’s employment commenced on 14 November 2011.
The Court has considered the submissions of both parties on this point. The Court finds that the Respondent intended to terminate the Complainant’s employment in September 2011 when he returned home to attend to personal family matters. The Court was told that the Complainant was not in a position to anticipate the length of time he would be required in Lithuania and gave no indicative time to the Company as to when he would return. However the Court also notes that the Company did not proceed to terminate the Complainant’s employment. It was not in a position to tell the Court when it issued the Complainant with a P45. The Company did not produce any records of cesser pay or of any of the normal documentation issued on the termination of employment.
Accordingly the Court finds that the Complainant’s employment was continuous as it was at no point terminated by the Respondent. The Court determines therefore that the Complainant’s employment commenced on 28 April 2010 and terminated on 17 December 2012.
Relevant Period
Section 27(4) of the Act provides:
- (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.
As the complaint was submitted to the Labour Relations Commission on 6 February 2012, and as there was no request for an extension of time under section 27(5), the Court’s jurisdiction is confined to contraventions of the Act that occurred on or after 6thAugust 2011.
Section 11 daily rest period
The Complainant submits that on several dates between August and December 2011, he did not, contrary to section 11 of the Act, receive a daily rest period of 11 consecutive hours.
The respondent disputes the complaint and submits that the Complainant at all times availed of an 11 hour break between shifts.
Section 12
The Complainant submits that he did not, in the relevant period, receive rest breaks in accordance with the provisions of Section 12 of the Act. The Respondent submits that the Complainant was required to take his breaks in accordance with the provisions of Section 12 of the Act.
Section 13
The Complainant submits that he was not paid a premium for in respect of any of the Sundays he was required to work in the relevant period. The Respondent submits that the Complainant’s statement of the main conditions of his employment sets out that he is required to be available to work on any day of the week and sets out a daily rate of €90 euro per day. It submits that, taken together, these section constitute a contractual commitment to work on Sunday and implies that the daily rate of pay includes a premium in respect of work performed on that day.
Section 15
The Complainant submits that he was, in the reference period, required to work an average of more than 48 hours per week contrary to the provisions of Section 15 of the Act.
The Respondent submits that the Complainant was at no point required to work in excess of 48 hours per week. It submits that it at all times complied with the provisions of Section 15 of the Act.
Section 22
The Complainant submits that his contract of employment sets his rate of pay as €90 per day which amounts to €450 per five day week worked. He submits that he was in fact paid €350 per week with a further €100 paid as subsistence payments. He submits that he was paid on this basis in respect of the public holidays that fell during the relevant period and to which he was lawfully entitled after his employment ended. He submits that he is entitled to be paid the daily rate set out in his contract of employment in respect of each of those days.
The Respondent submits that the Complainant was paid his wages and subsistence in a tax efficient manner ain in accordance with the terms of an agreement in place between the Road Haulage Association and the Revenue Commissioners.
Annual Leave
The Complainant submits that he was paid at the rate of €350 in respect of each of the four weeks annual leave to which he was entitled in the relevant leave year. He submits that this amount is less than his contracted rate of pay and less than the amount to which he is entitled under the Act.
The Respondent submits that the Complainant was paid his wages in a tax efficient manner and in accordance with the terms of an agreement in place between the Road Haulage Association and the Revenue Commissioners. It submits that it applied the same arrangements to the Complainants holiday pay and in a manner that complies with the terms of the Act. It submits that as he did not incur subsistence costs whilst on holiday he was not paid them for those days or weeks.
Section 17
The Complainant submits that he was not given 24 hours’ notice of additional hours the Company required him to work in the relevant period. The Respondent submits that the Complainant was notified of his shifts in advance each week and was notified of additional hours in advance in accordance with section 17 of the Act.
Findings of the Court
The Respondent is required by Section 25 of the Act maintain such records as will show whether the provisions of the Act are being complied with. Where an employer fails to maintain such records the burden of proving compliance with the Act lies with the employer. In this case the Respondent was not in a position to produce records of hours worked, rest periods or breaks taken or copies of notifications of additional hours the Complainant was required to work in the relevant period. The Respondent offered no other evidence of compliance with the provisions of the Act to the Court.
As the Respondent did not produce records of the hours worked or offer any other evidence to the Court in relation to the complaints made by the Complainant in respect of the alleged infringements of Sections 11,12, 15, or 17 of the Act, the Court finds that it has failed to discharge the burden of proving compliance with the relevant provisions of the Act. The Court accordingly determines that the complaints are well founded.
Section 14 of the Act provides 'that a person who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required to so work by the payment of either an allowance of such an amount as is reasonable in all the circumstances or by increasing the employees rate of pay by a reasonable amount or by granting such employee reasonable time off in all the circumstances of the case or by a combination of any or all of the above'.
In this case the Respondent submits that, when read together, the following paragraphs in the employee’s contract of employment supports its contention that the requirement to work on a Sunday is taken into account in the determination of the Complainant’s pay:
- (e ) Salary
Your salary is €90 per day. This will be reviewed after an initial trial period of six months. Salaries are available after 12.00 pm. each Friday.
(f) Hours of Work
The company operates around the clock seven days per week. You will be required to work up to 768 hours in any 16 week period. Break entitlements will be as per current Tachograph Regulations/Working Time legislation.
The Court finds that the combined effect of the two paragraphs when, read together, do not have the effect claimed by the Respondent. The Complainant is on notice that he is required to work “up to 768 hours in any 16 week period”. No reference is made to a liability to work on Sunday without additional compensation. Accordingly the Court finds that the complaint is well founded.
The Court finds that the Complainant is entitled to payment in respect of annual leave and in respect of the Public Holiday on the basis of his normal weekly pay (section 20 (2) (b)). The Complainant’s contract of employment provides that his daily rate of pay is €90. The contract of employment makes no provision for any abatement in respect of subsistence allowances paid by the employer. Accordingly the Complainant is entitled to be paid in respect of his annual and public holidays in accordance with the rate of pay set out in the contract of employment i.e. €90 per day or €450 per week.
The Court therefore determines that the complaints are well founded. The decision of the CJEU inVon Colsonv Land Nordrhein-Westfahlen [1984] ECJrequires the Court, in circumstances where a complainant’s rights under European Union legislation have been breached, to make an award that compensates for more than the mere financial loss involved. Accordingly, taking all matters into account, the Court orders the Respondent to pay the Complainant compensation in the sum of €8,000 for the infringement of his rights under the Act and in restoration of the shortfall in pay for the annual leave and public holiday pay that fell whilst employed for the Respondent.
Determination
The Court determines that the Complaints are well founded, the appeal is allowed, the Rights Commissioner’s decision is set aside and the Respondent is ordered to pay the Complainant compensation in the sum of €8,000. The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
31st May, 2013______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.