FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : CHRISTOPHER & MARGARET DOWLER T/A DOWLER'S STEAKHOUSE & WINE BAR - AND - MR PAOLO REGAZZI DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner's Decision r-127465/127467/127469-wt-12/RG.
BACKGROUND:
2. The Employer appealed the Rights Commissioner's Decision to the Labour Court on 24th June, 2013. A Labour Court Hearing took place on 29th August, 2013. The following is the Labour Court's Determination:
DETERMINATION:
This is an appeal under Section 28(1) of the Organisation of Working Time Act 1997 (“the Act”) by Margaret and Christopher Dowler (“the Respondents”) against Rights Commissioner decision number r-127467-wt-12/RG. The Rights Commissioner decided under Section 27(2) of the Act that complaints made by Mr Paolo Regazzi (“the Complainant”) that the Respondent had infringed Sections 15 and 21 of the Act. She awarded the complainant compensation in the sum of €2,500 under Section 27(3) of the Act.
Background
Following a two day trial period, for which he was not paid, the Complainant worked for the Respondent in his restaurant as a waiter from May 14th2012 until October 20th2012 on an agreed salary of €25,000 per annum. He worked from 3 pm until close of business Wednesday through Sunday. Monday and Tuesday were rest days. In October 2012, following a performance review, the Respondent increased the Complainant’s annual salary to €29,000 per annum. Later that month the Respondent dismissed the Complainant for poor performance.
Complaint
The Complainant states that the Respondent infringed the provisions of Sections 15 and 21 of the Act.
Section 15
Complainant’s Position
The Complainant states that he consistently worked no less than 10 hours per day for five days each week. He states that he attended for work around 1 pm and finished work when the restaurant closed at around 11 pm. At the weekend he states that he commenced work at 12:30 pm and finished work at around 12:30 am the following morning. He states that he received no structured breaks during that time. He states that he was expected to take his rest and consume his meals at quiet times in the restaurant. He states that he was never issued with a pay slip showing his hours of work or the details of his earnings and deductions.
Respondent’s Position
The Respondent states that the restaurant operated a strict shift system. He states that the Complainant was rostered to work each working day from 2:00 pm until 10:00 pm. He states that the kitchen closed at 10:00 pm and the complainant was not required after that time. He states that the Complainant had a practice of remaining at work until the “tip jar” was counted. This was not normally counted until all the patrons had left the restaurant. Accordingly the Complainant remained after work to collect his tips. These could amount to a considerable amount of money.
The Respondent submits that it complied with the provisions of Section 15 of the Act and required staff to work a 40 hour week. It further states that the Complainant was allowed his breaks in accordance with Section 12 of the Act.
Findings of the Court
The Law
Section 15 of the Act states:
- (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—- (i) in the case of an employee employed in an activity referred to in paragraph 2 , point 2.1. of Article 17 of the Council Directive , or
(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
- (i) in the case of an employee employed in an activity referred to in paragraph 2 , point 2.1. of Article 17 of the Council Directive , or
- (a) 4 months, or
- (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.
The Respondent advised the Court that he maintained records of the Complainant’s hours of work but that they were no longer available for inspection by the Court. He also stated that he posted a copy of the weekly roster on the staff notice board. However he was not in a position to supply a copy to the Court.
The Complainant stated that he did not sign in or out at the commencement or end of his shift. He also stated that he never saw a copy of the weekly roster posted on any notice board in the Restaurant.
The Court prefers the evidence of the Complainant in this case. He presented as a truthful and reliable witness. Moreover he supported his evidence with copies of his bank statements that were consistent with the information he provided to the Court.
The Respondent on the other hand presented no documents in support of his evidence. Moreover he did not maintain the records required of him under Section 25(1) of the Act. Accordingly the onus of proving compliance with the provisions of the Act lies with him.
The Respondent stated that the Complainant finished work but remained on the premises until the tip jar was counted. The Complainant disputes this and states that he remained at work until the restaurant closed and the last patrons had left the premises.
The Court prefers the Complainant’s evidence. He was employed as the head waiter in the restaurant. Accordingly the Court does not accept that he was free each night to leave the premises while patrons remained there requiring service. The head waiter would normally ensure that all patrons were properly attended, served their meals and drinks and seen safely out of the restaurant. This is the evidence he gave to the Court which the Court accepts.
The Respondent states that he finished his shift before the guests left the restaurant but remained on the premises waiting to receive his tips. The Court does not find this evidence convincing or credible.
The Court therefore finds that the Respondent required the Complainant to work each day until the restaurant closed. His working week therefore consistently exceeded 48 hours. Accordingly the Court finds that the Respondent infringed section 15 of the Act in respect of the Complainant.
Determination
The Complaint is well founded. The Court orders the Respondent to pay the Complainant compensation in the sum of €2,500 arising out of the infringement of Section 15 of the Act.
Section 21
The Complainant states that he commenced working for the Respondent on the 17thMay 2012 and that his employment terminated on the 19thOctober 2012. He states that he was entitled to be paid for or receive a compensatory day off in respect of both the June and August Public Holidays that year. He states that he was not afforded the provisions of Section 21 of the Act in respect of either of those days.
The Respondent states that the Complainant did not work on either of those days and that he was afforded a day off on the Wednesday after each of the Public Holiday.
Findings of the Court
The Respondent did not maintain records of the Complainants public holiday arrangements. Accordingly the onus of proving compliance with Section 21 of the Act lies with Respondent.
The Respondent submitted no evidence to the Court in support of its position other than to assert that the Complainant was afforded a rest day on the Wednesday following each of the Public Holidays.
In the absence of any evidence to support that assertion the Court finds that the Respondent did not discharge the onus of proving compliance with Section 21 of the Act. Moreover he argued that the Complainant did not work on the Public Holiday and that he received a compensatory paid day off. The Court finds this evidence incredible.
Accordingly the Court finds that the Complaint is well founded. The Court awards the Complainant compensation in the sum of €500.
Determination
The Complaint is well founded. The Court orders the Respondents to pay the Complainant compensation in the sum of €3,000 as outlined above.
Signed on behalf of the Labour Court
Brendan Hayes
29th October, 2013______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.