FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : OCS IRELAND (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - PETRU CRISTIAN LLIES DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appeal against Rights Commissioner's Decisions r-128909-wt-12/SR, r-128914-wt-12/SR & r-128915-wt-12/SR.
BACKGROUND:
2. The Worker appealed the Rights Commissioner's Decision to the Labour Court on 17th June, 2013. A Labour Court Hearing took place on 27th August, 2013. The following is the Labour Court's Determination:
DETERMINATION:
This is an appeal by Petru Cristian Ilies against the decision of a Rights Commissioner in his complaint against his employer OCS Ireland under the Organisation of Working Time Act 1997 (the Act). In this Determination Mr Ilies is referred to as the Claimant and OCS Ireland is referred to as the Respondent.
The Basis of the Claim
The Claimant is a cleaner who works in a location which, for reasons of hygiene, he cannot leave until it is unlocked. He is contractually entitled to a 30 minute break at 11am each day. According to the Claimant, on an unspecified date in August 2012 he was late commencing his break because of a delay unlocking his work station. He claims that at 11.30am on the day he was directed to return to work. The Claimant contends that on this occasion he received a 20 minute break rather than the 30 minute break to which he was entitled.
The Respondent contends that the incident to which the Claimant referred was investigated and the supervisor in question denied that it occurred. The Respondent pointed out to the Court that it tried to resolve the matter locally with the Claimant but he insisted on pursing the matter to the Rights Commissioner service and now on appeal.
Conclusion of the Court
There can be no doubt and to when a break starts and finishes for the purposes of the Act. Section 2 of the Act defines working time as any time that the employee is: -
- (a) At his or her place of work or at his or her employer’s disposal, and,
(b) Carrying on or performing the activities or duties of his or her work
It is thus clear that a ‘break’ commences at the time that the worker ceases to carry out or perform his or her activities or duties and ceases to be at his or her employer’s disposal. It ends when the worker again commences to carry out the work for which he or she is employed.
However, s. 12 of the Act provides, in effect, that a worker is entitled to a break of at least 15 minutes after having worked 4.5 hours. The Claimant told the Court, through his representative, that on the day in question he received a break of 20 minutes. He had commenced work at 7 am on that day. Even if the incident of which he complained did occur, and even if the delay had the effect of reducing the duration of his break (and the Court makes no finding on either point), he nevertheless had a break of more than 15 minutes after having worked for 4 hours. In these circumstances the facts alleged by the Claimant in grounding his claim could not amount to a contravention of his statutory entitlements under s.12 of the Act.
Determination
For the reasons set out above the Court is satisfied that the within complaint is not well-founded. The decision of the Rights Commissioner is affirmed and the appeal is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
5th September, 2013______________________
JMcCChairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.