FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : AUTOMATIC AMUESMENTS LTD (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - MR JANIS LIELBARDIS (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal Against A Rights Commissioners Decision r-120033-wt-11
BACKGROUND:
2. The Employer appealed the Rights Commissioner’s Decision to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997 on the 16th August, 2012 . The Court heard the appeal on the 5th December, 2012, the earliest date suitable to the parties.The Court requested further information which was supplied to the Court on 18th December 2012, 28th February 2013 and 19th June 2013. The following is the Court's Determination:
DETERMINATION:
The Complainant brought a complaint before a Rights Commissioner pursuant to the Organisation of Working Time Act 1997 (the Act) alleging that his employer was in breach of Sections 16 of the Act. The Rights Commissioner upheld the complaint and awarded the sum of €3,500.00. The employer appealed the Decision.
For ease of reference the parties are referred to as they were at first instance. Hence Mr. Janis Lielbardis will be referred to as “the Complainant” and Automatic Amusements Limited will be referred to as “the Respondent”.
The Complainant submitted a claim under the Act to the Rights Commissioner on 10thFebruary 2012.
Background
The Complainant was employed by the Respondent as a Croupier from 15thOctober 2010 until 23rdJanuary 2012. There is no dispute that he was a “night time worker” as defined by Section 16 (1) of the Act.
Summary of the Complainant’s Claim
Mr. Richard Grogan, Solicitor, on behalf of the Complainant, alleged that the Respondent was in breach of Section 16 (2)(b)(i) of the Act as the Complainant was required to work in excess of an average of 8 hours calculated over a 2-month reference period. Mr. Grogan stated that in a 2-month reference period within the 6-month time period covered by the claim, the Complainant worked more than 8 hours on average per night shift.
Summary of the Respondent’s Position
Mr. David Farrell, IBEC, on behalf of the Respondent, denied that there was a breach of the Act. He maintained that the Complainant had not worked more than 8 hours on average in the statutory reference period. Mr. Farrell said that the Complainant worked from Thursdays through to Mondays, typically commencing work at approximately 9.00pm and finishing at around 6.00am. He was paid for all hours clocked against a swipe/finger-print scanner from the start to the finish of his shift inclusive of all breaks. During the night he received paid breaks of approximately 1.5 to 2 hours depending on the duration of his shift.
Mr. Farrell submitted records in respect of the Complainant’s attendance and stated that an analysis of these records demonstrated that the Complainant did not work in excess of 8 hours per night. He contended that in the 2-month period from 6thOctober to 5thDecember 2011 the Complainant worked a total of 230.82 hours or an average of 6.99 hours per shift over the 33 shifts in the period. In the 2 month period from 6thDecember to 5thFebruary 2012 he worked a total of 79.27 hours or an average of 6.61 hours per shift over the 12 shifts he worked in that period.
Conclusions of the Court
Section 16(2) provides that an employer cannot allow an employee who is a night worker to work more than an average of 8 hours per 24 hour period calculated over a reference period of 2 months.
The cognisable period for the purpose of these claims is the period between 11thAugust 2011 and 10thFebruary 2012. Within that period Mr. Grogan accepted that there was no breach in the period 11thOctober to 10thDecember 2011n or from 11thDecember to 10thFebruary 2012. Therefore the Court sought details of the hours worked excluding break-times for the period from 11thAugust 2011 until 10thOctober 2011.
At the hearing the Respondent produced records of dates and times worked by the Complainant and these included details of break times. This information was derived from time sheets manually recorded together with computer-generated information derived from finger-scan material. However, Mr. Grogan disputed the accuracy of the manually recorded information and submitted that finger-scan details should be provided to the Court to substantiate the employer’s records.
At the request of the Court the Respondent produced further computer-generated information giving details of hours and breaks to cover the period in dispute, 11thAugust to 10thOctober 2011, however finger scan data was only available in respect of the period from November 2011 to January 2012. Having examined the finger -can information for the period in which the Court has both finger-scan information and computer-generated information, the Court is satisfied that it corroborates the latter’s recorded details on start and finish times. However, break times were not subject to finger-scanning, therefore, the Court in its examination of the records relies on the agreement reached between the parties whereby it was agreed that the Court could discount a one-hour break for each shift.
Therefore, on the basis that the Court is satisfied that the computer-generated records can be relied upon for the start and finish times, having examined these and cross-checking them with the manually-recorded records for the period in dispute the Court finds that the Complainant worked an average of 7 hours and 46 minutes (excluding agreed break times) per 24 hour period calculated over a reference period of 2 months. Accordingly, the Court is satisfied that there was no breach of Section 16 of the Act.
Determination
Accordingly, the Court overturns the Rights Commissioner's Decision and upholds the Respondent’s appeal.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
6th September 2013______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.