FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : GEM PACK FOODS LIMITED - AND - ARNOLDAS RUSKYS (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Mr Duffy Employer Member: Ms Cryan Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioner's Decision r-122864-wt-12/MMG.
BACKGROUND:
2. The Worker appealed the Rights Commissioner's Decision to the Labour Court on 16th January, 2013. A Labour Court Hearing took place on 26th April, 2013. The following is the Labour Court's Determination:
DETERMINATION:
This is an appeal by Gem Pack Foods Limited against the decision of a Rights Commissioner in a claim by Arnoldas Ruskys under the Organisation of Working Time Act 1997.
The Claimant contends that the Respondent contravened the following provision of the Act: -
- •Sections 11 (Daily rest periods)
•Section 12 (Rests and intervals at work)
•Section 14 (Sunday premium)
•Section 15 (Weekly working hours)
•Section 19 (Annual leave)
On the evidence before it the Court has concluded the following in relation to each of these complaints: -
Time Limits
The complaint was referred to the Rights Commissioner on 24thMay 2012. Consequently the reference period having regard to s.27(4) of the Act is the six months preceding that date.
Section 11
On one occasion, namely, 14th/ 15thDecember 2011 This section was contravened. The Claimant finished work at 8pm on 14thDecember and commenced working at 4am on 15thDecember.
Section 12
This claim was withdrawn at hearing.
Section 14
There was no evidence that the Claimant worked on any Sundays during the reference period.
Section 15
The records furnished to the Court show that in a reference period spanning 18weeks the average hours worked by the Claimant were 47.8. Section 15 of the Act provides that an employer may not permit an employee to work more than an average of 48 hours per week in a reference period that does not exceed four months. As previously noted the claim was presented on 24thMay 2012. Hence, the cognisable reference period is the four months preceding that date. Moreover, the reference period used by the Respondent in its calculation included periods in which the Claimant had been on sick leave. Section 15(3)(c) of the Act provided that such a period must be disregarded. In these circumstances the records provided do not show compliance with Section 15 of the Act. They do show that if the weeks during which the Claimant worked reduced hours due to absences from work the average hours exceed 48 per week. It is noted that the Claimant contends that he worked an average of 49.7 hours per week. In the Court’s view that figure is probably correct.
Section 19
The Court is satisfied that in the leave year April 2011 to March 2012 the Claimant received three weeks annual leave. Two of these weeks were consecutive but extend into the leave year commencing 1stApril 2012 by six days. That contravened Section 20(1)(c) of the Act. The Respondent carried over one week of the Claimant’s entitlement in respect of his entitlement for the leave year 2011-2012 into the next following leave year. That is only permissible under Section 20(1) of the Act where the Claimant consents. It is accepted that the Claimant in this case did not consent. It is accepted that he was allocated three weeks leave at the times he asked to take his leave and he did not request a facility to take the outstanding week of leave during the relevant leave year. It is also accepted that the Claimant was paid in respect of this carried over leave when his employment terminated.
The Court finds that the Respondent did contravene the provisions of the Act in the manner described in this Determination. The contraventions of Sections 11 & 19 were, in the Court’s view, minor and technical in nature. While the contravention of Section 15 could not be described as merely technical it was in the lower scale of seriousness.
Redress
Having regard to all the circumstances of this case the Court believes that the appropriate redress is an award of compensation. The Court measures the amount of compensation that is just and equitable as follows: -
Contravention of Section 11
The Court awards the Complainant compensation in the amount of €250.
Contravention of Section 19
The Court awards the Complainant compensation in the amount of €250.
Contravention of Section 19
The Court awards the Complainant compensation in the amount of €500.
The Rights Commissioner's decision is varied accordingly.
Signed on behalf of the Labour Court
Kevin Duffy
2nd May, 2013______________________
JMcCChairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.