FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : BALLINALARD TRANSPORT LIMITED - AND - MR ZOLTON GONCZI DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner's Decision 097993-Wt-10/GC.
BACKGROUND:
2. The Company appealed the Rights Commissioner's Decision to the Labour Court. A Labour Court hearing took place on the 6th March, 2013. The following is the Labour Court's decision.
DETERMINATION:
This is an appeal, under Section 28(1) of the Organisation of Working Time Act 1997 (“the Act”), by Ballinalard Transport Ltd (“the Respondent”) against Rights Commissioner Decision No 097993-wt-10/GC issued on 31stAugust 2011. As the Respondent did not attend the Rights Commissioner’s hearing, she decided that the complaints under Sections 12, 14, 15 and 22 and 23 of the Act were well founded and awarded Mr Gonczi (the Complainant) compensation in the sum of €3,000.
The Respondent appealed against that decision to the Labour Court. The case came on for hearing on 6 March 2013. As the Complainant, a foreign national, had very poor English the Court adjourned to the 7thMarch 2013 to allow a translator attend to assist the Court and the parties.
The Complainant worked for the Respondent as a heavy goods vehicle driver from 10 July 2008 until 23 June 2010. His work entailed the international carriage of goods by road. The Complainant complained the Respondent’s work schedules required him to work in excess of 48 hours per week and that they denied him access to rest breaks in the course of each day’s work. He further complained that that he was required to work on Sunday for which he received no premium payment. He further complained that he was required to work on Public Holidays for which he was no allowed compensatory payment or rest as required by the Act. The Respondent denies all of the Complaints.
Section 12
Complainant’s Position
The Complainant gave evidence to the Court. He told the Court that he was not allowed to take breaks during his daily duties. He said that he was told to switch the tacograph to rest while he was queuing to have his truck unloaded. He said that he was required to take his break in the truck and was not in a position to rest during his rest period. He said that this was a daily occurrence.
Respondent’s Position
Mr Alex English, Managing Director of the Company gave evidence to the Court. He said that the Company operated a digital tachograph system that recorded the Complainant’s hours of work and daily breaks. He said that the system showed that the Complainant took the breaks to which he was statutorily entitled. He said that the Complainant’s truck had been stopped by the road transport inspection unit in the United Kingdom and had found no irregularities in the Complainant’s records. Accordingly the Complainant must have been complying with the provisions of the Act.
The Law
Section 12 of the Act states
12 (1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.
(2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1) .
(3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour).
(4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2) .
There is a direct conflict of evidence between the Complainant and the Respondent. The Complainant states that he was required to switch the tacograph to rest while he was queuing to be loaded or unloaded. The Respondent denies this. Tacograph records are of little assistance to the Court in deciding this complaint. The Complainant states that they are not a true record of his actual break times as he was instructed to misrecord his work status on the system.
Accordingly, the Court must rely on its impression of the witnesses. The Court found the Complainant honest and reliable particularly in respect of aspects of his complaint that did not advance his cause. By comparison the Court found the Respondent vague and less reliable in his evidence. He found it difficult to explain inconsistencies in his evidence and relied on generalities rather than specifics to support his evidence.
Accordingly, the Court prefers the evidence of the Complainant. The Court finds that, on the balance of probabilities, the Complainant was instructed to switch the tacograph system to record working time whilst queuing as rest time thereby misrecording his actual rest periods. The Court finds, accordingly, that the Complainant was required, contrary to section 12 of the Act, to work without proper and adequate breaks from work.
Determination
The Court determines that the Complaint is well founded. The Court takes the view that a decision to deprive a worker of access to rest breaks is a very serious matter that has profound implications for the health and safety of the worker concerned and, in the case of heavy goods vehicle drivers, the general public. The Court is also conscious of the decisions of the CJEU in a line of cases fromSabine von Colson and Elisabeth Kamann v Land Nordrhein-Westfalen Case 14/83 10 April 1984in which it stated:
- IT SHOULD , HOWEVER , BE POINTED OUT TO THE NATIONAL COURT THAT ALTHOUGH DIRECTIVE NO 75/207/EEC , FOR THE PURPOSE OF IMPOSING A SANCTION FOR THE BREACH OF THE PROHIBITION OF DISCRIMINATION , LEAVES THE MEMBER STATES FREE TO CHOOSE BETWEEN THE DIFFERENT SOLUTIONS SUITABLE FOR ACHIEVING ITS OBJECTIVE , IT NEVERTHELESS REQUIRES THAT IF A MEMBER STATES CHOOSES TO PENALIZE BREACHES OF THAT PROHIBITION BY THE AWARD OF COMPENSATION , THEN IN ORDER TO ENSURE THAT IT IS EFFECTIVE AND THAT IT HAS A DETERRENT EFFECT , THAT COMPENSATION MUST IN ANY EVENT BE ADEQUATE IN RELATION TO THE DAMAGE SUSTAINED AND MUST THEREFORE AMOUNT TO MORE THAN PURELY NOMINAL COMPENSATION SUCH AS , FOR EXAMPLE , THE REIMBURSEMENT ONLY OF THE EXPENSES INCURRED IN CONNECTION WITH THE APPLICATION . IT IS FOR THE NATIONAL COURT TO INTERPRET AND APPLY THE LEGISLATION ADOPTED FOR THE IMPLEMENTATION OF THE DIRECTIVE IN CONFORMITY WITH THE REQUIREMENTS OF COMMUNITY LAW , IN SO FAR AS IT IS GIVEN DISCRETION TO DO SO UNDER NATIONAL LAW
- (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,
- (a) declare that the complaint was or, as the case may be, was not well founded,
In that context the Court orders the Respondent to pay the Complainant compensation in the sum of €1,500 for the infringement of the Act involved which amount the Court considers just and equitable having regard to all the circumstances of the case.
Section 14
Section 14 of the Act states:
- 14. (1) An employee 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 so to work by the following means, namely—
- (a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or
(b) by otherwise increasing the employee's rate of pay by such an amount as is reasonable having regard to all the circumstances, or
(c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or
(d) by a combination of two or more of the means referred to in the preceding paragraphs.
(2) Subsection (3) applies to an employee where the value or the minimum value of the compensation to be provided to him or her in respect of his or her being required to work on a Sunday is not specified by a collective agreement.
(3) For the purposes of proceedings under Part IV before a rights commissioner or the Labour Court in relation to a complaint that this section has not been complied with in relation to an employee to whom this subsection applies (“the first-mentioned employee”), the value or the minimum value of the compensation that a collective agreement for the time being specifies shall be provided to a comparable employee in respect of his or her being required to work on a Sunday shall be regarded as the value of compensation to be provided under this section to the first-mentioned employee that is reasonable having regard to all the circumstances:- Provided that if each of 2 or more collective agreements for the time being specifies the value or the minimum value of the compensation to be provided to a comparable employee to whom the agreement relates in respect of his or her being required to work on a Sunday and the said values or minimum values are not the same whichever of the said values or minimum values is the less shall be regarded, for the purposes aforesaid, as the value of compensation to be provided under this section to the first-mentioned employee that is reasonable having regard to all the circumstances.
(4) Unless the fact of such a value being so specified has come to the notice of the rights commissioner or the Labour Court, as the case may be, it shall be for the person who alleges in proceedings referred to in subsection (3) that a value of compensation of the kind referred to in that subsection is specified by a collective agreement mentioned in that subsection to show that, in fact, such a value is so specified.
(5) In subsection (3) “comparable employee” means an employee who is employed to do, under similar circumstances, identical or similar work in the industry or sector of employment concerned to that which the first-mentioned employee in subsection (3) is employed to do.
(6) References in this section to a value or minimum value of compensation that is specified by a collective agreement shall be construed as including references to a value or minimum value of compensation that may be determined in accordance with a formula or procedures specified by the agreement (being a formula or procedures which, in the case of proceedings referred to in subsection (3) before a rights commissioner or the Labour Court, can be readily applied or followed by the rights commissioner or the Labour Court for the purpose of the proceedings). - (a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or
The Complainant states that he was required to work on Sunday for which he received no premium payment. The Respondent states that the Complainant worked three Sunday’s in the relevant period. It submits that the Complainant was paid a rate of pay that included a premium in respect of Sunday work. It relies on the words of Section F of the Statement of Main Terms of Employment that was issued to the Complainant on commencement of his employment. Section F states that'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.' The Respondent argues that this amounts to a contractual term requiring the complainant to work on Sunday for the consolidated rate of pay set out in the Statement.
Findings of the Court
The issue for the Court to decide is whether or not the fact of the Complainant having to work on Sunday has not otherwise been taken account of in the determination of his or her pay. The Court takes the view that the Respondent is asserting that it has taken has taken the requirement to work on Sunday into account when determining pay. Accordingly, it is for the Respondent to so prove.
The Respondent relies exclusively on the wording of Section F of the Statement of Main Terms of Employment in support of its assertion. However that section amounts to a mere statement that the Company operates a 7 day week and that the Complainant will be required to be available to so work. It makes no reference to the rate of pay that applies for working on Sunday. Moreover it contains no indication that the requirement to work on Sunday is reflected in the overall rate of pay. Accordingly. the Court is not satisfied that the provisions of Section 14 of the Act have been complied with in this case.
Determination
The Court determines that the Complaint is well founded. The Court notes that the Complainant was required to work on Sunday on 3 occasions in the relevant time. The Court also notes that he worked on Sunday consistently over his entire period of employment with the Respondent. Accordingly, the Court orders the Respondent to pay the Complainant compensation in the sum of €1,500 for the infringement of the Act involved which amount the Court considers just and equitable having regard to all the circumstances of the case. The Court so determines.
Section 15
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, or
(b) 6 months—
(ii) where due to any matter referred to in section 5 , it would not be practicable (if a reference period not exceeding 4 months were to apply in relation to the employee) for the employer to comply with this subsection, or- (c) such length of time as, in the case of an employee employed in an activity mentioned in subsection (5) , is specified in a collective agreement referred to in that subsection.
(2) Subsection (1) shall have effect subject to the Fifth Schedule (which contains transitional provisions in respect of the period of 24 months beginning on the commencement of that Schedule).
(3) The days or months comprising a reference period shall, subject to subsection (4) , be consecutive days or months.
(4) A reference period shall not include—- (a) any period of annual leave granted to the employee concerned in accordance with this Act (save so much of it as exceeds the minimum period of annual leave required by this Act to be granted to the employee),
- [(aa) any period during which the employee was absent from work while on parentalleave, force majeureleave or carer's leave within the meaning of the Carer's Leave Act 2001 ,]
(c) any sick leave taken by the employee concerned.
(5) Where an employee is employed in an activity (including an activity referred to in subsection (1)(b)(i) )—- (a) the weekly working hours of which vary on a seasonal basis, or
(b) as respects which it would not be practicable for the employer concerned to comply with subsection (1) (if a reference period not exceeding 4 or 6 months, as the case may be, were to apply in relation to the employee) because of considerations of a technical nature or related to the conditions under which the work concerned is organised or otherwise of an objective nature,
- (a) 4 months, or
The Complainant submitted that he was required to work in excess of an average of 48 hours per week whilst employed by the Respondent. The Respondent denies the complaint and submits the digital tachograph records in support of its position. The Respondent did not keep records as required by Section 25 of the Act.
Findings of the Court
The Complainant stated in evidence that his hours of work between January and June 2009, when the digital tacograph was in use, were compliant with the law. In these circumstances the Court finds that the Complaint is not well founded.
Determination
The appeal is allowed. The decision of the Rights Commissioner is set aside.
Section 22/23
Section 22 of the Act states:
(1) Subject to the provisions of this section , an employee shall, in respect BB.159 of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—- (a) a paid day off on that day,
(b) a paid day off within a month of that day,
(c) an additional day of annual leave,
(d) an additional day's pay:
(2) An employee may, not later than 21 days before the public holiday concerned, request his or her employer to make, as respects the employee, a determination under subsection (1) in relation to a particular public holiday and notify the employee of that determination at least 14 days before that holiday.
(3) If an employer fails to comply with a request under subsection (2) , he or she shall be deemed to have determined that the entitlement of the employee concerned under subsection (1) shall be to a paid day off on the public holiday concerned or, in a case to which the proviso to subsection (1) applies, to an additional day's pay.
(4) Subsection (1) shall not apply, as respects a particular public holiday, to an employee (not being an employee who is a whole-time employee) unless he or she has worked for the employer concerned at least 40 hours during the period of 5 weeks ending on the day before that public holiday.
(5) Subsection (1) shall not apply, as respects a particular public holiday, to an employee who is, other than on the commencement of this section , absent from work immediately before that public holiday in any of the cases specified in the Third Schedule .
(6) For the avoidance of doubt, the reference in the proviso to subsection (1) to a day on which the employee is entitled to a paid day off includes a reference to any day on which he or she is not required to work, the pay to which he or she is entitled in respect of a week or other period being regarded, for this purpose, as receivable by him or her in respect of the day or days in that period on which he or she is not required to work as well as the day or days in that period on which he or she is required to work.- (a) a paid day off on that day,
The Complainant states that he carried out work for the Respondent on the June Public Holiday in 2009 for which he was not paid any of the compensation provisions set out in the Act. He further states that he worked for the Respondent on the May Public Holiday, the Easter Public Holiday and on St Patrick’s Day and was treated in a similar manner. He submits that he is entitled to payment in accordance with the provisions of the Act. The Respondent submits that the Complainant was allowed an additional days leave in respect of the June Public Holiday.
Findings of the Court
Section 21 of the Act states
(1) Subject to the provisions of this section , an employee shall, in respect BB.159 of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—- (a) a paid day off on that day,
(b) a paid day off within a month of that day,
(c) an additional day of annual leave,
(d) an additional day's pay:
- (a) a paid day off on that day,
Mr Justice Lavinin Royal Liver Assurance Limited v Graham Macken, Michael Wall, Anthony Kelly, John Maher, John Cotter, Gerard Quinn, Aidan Cassidy and Sipt, Unreported Judgement15th November 2002stated:
- It is clear that public holidays are on a different footing to annual leave: public holidays receive entirely separate treatment to annual leave under the 1997 Act, and there is no basis on which to equate the date of contravention of the obligation to vindicate an employee's entitlements in respect of public holidays with the date of contravention of the obligation to provide annual leave. The requisite infringement for the purposes of Section 21(1) would arise in contexts where the employer has failed to elect between the various entitlements of an employee under Section 21(1): or, where an employer fails to comply with a request made by an employee under Section 21(2), where the employer fails to give a paid day off on the public holiday or an additional day's pay, as the case may be. In each case, it seems the infringement would arise on the date of the public holiday itself.
Section 25 of the Act requires an employer to keep records that show compliance with the provisions of the Act:
(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.
- (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 employer has failed to discharge that onus. Accordingly the Court finds the complaint is well founded.
Determination
The Court determines that the complaint is well founded. The Court orders the Respondent to pay the Complainant compensation in the sum of €1500 which sum the Court considers just and equitable in the circumstances of this case. The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
15th May, 2013______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.