DWT1435

Background

The Respondent is a security company that provided static guard services on a contract basis to a range of retail stores. The Complainant was employed as a static security guard from 27 March 2009 until he resigned his employment on 17 October 2012. For the greater part of his employment he was assigned to work in the Aldi store on Parnell Street Dublin. He submits that during his employment he,

• 
  •contrary to section 12 of the Act, did not receive the statutory rest and intervals at work set out in the Act

  •contrary to section 15 of the Act worked in excess of an average of 48 hours per week.

  •contrary to sections 19 and 23 of the Act did not receive annual leave in the amount set out in the act and was not paid cesser pay for the amount outstanding on the termination of his employment.

Section 12

Section 12 of the Act states:

• (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)

Statutory Instrument No 21 of 1998 (Organisation of working time (General Exemptions) Regulations1998):

• 4. If an employee is not entitled, by reason of the exemption, to the rest period and break referred to in sections 11, 12 and 13 of the Act, the employer shall ensure that the employee has available to himself or herself a rest period and break that, in all the circumstances, can reasonably be regarded as equivalent to the first-mentioned rest period and break.

The Complainant in evidence stated that he worked a normal roster of twelve hours per day Tuesday through Saturday. He stated that he took no breaks during that time. He stated that he is a smoker and that while employed he smoked in the region of 10 – 15 cigarettes during the working day. He stated that each cigarette lasted roughly two minutes and that he normally smoked outside the back of the shop. He stated that the shop is located in a high pressure area. He said that as a result he could not take breaks. He said that he normally drank coffee at his post or in the back of the shop. He said that he normally had no more than a chocolate snack at such times. He stated that at all times he was at work and did not receive any time to rest during the working day. He stated that on three days of the week there was a second security guard in the shop. In answer to Counsel for the Respondent he agreed that the other officer took his breaks. He said that he submitted his time sheets, signed off by the store manager, on a daily basis that recorded that he worked 12 hours each day without a break. He stated that he was paid for all hours returned. He stated that the time sheets he returned recorded no breaks as he worked each day without a break.

Position of the Respondent

The Respondent argued that the Complainant was responsible for organising his own breaks in consultation with the Store Manager. It argued that the Complainant smoked 10 – 15 cigarettes per day and that this amounted to a break of between 20 and 30 minutes per day. It argued that the Complainant took other breaks and that amounted to at least one hour per day. It stated that it had carried out a calculation that disclosed that the Complainant was working an average of 45 hours per week in the relevant period.

Ms Fiona Cowhey, General Manager, gave evidence to the Court. She stated that the Complainant worked in Aldi Parnell Street in accordance with a roster that was notified to him by sms message each week. The rosters were standard and the sms message was normally brief and advised the Complainant that he was working the same roster each week. That roster was for five 12 hours shifts Tuesday through Saturday. She stated that the agreement with Aldi provided that security staff would take their statutory breaks in consultation with the store manager. She stated that the Company expected their employees to do so. She stated that all staff were so advised when they received their induction training on commencing assignment is Aldi. She stated that she had no personal knowledge of the induction training given to the Complainant. She said that she did not personally supervise the breaks. She acknowledged that the Company had paid the Complainant on the basis of 12 hours work per 12 hour rostered shift. She acknowledged that it made no deduction for breaks from the hours in respect of which he submitted store approved time sheets. She stated that another security guard employed in the store took his breaks, returned time sheets reflecting the hours worked and the breaks taken during each shift and was paid accordingly. She stated that Aldi did not pay the Respondent for breaks taken by staff. She stated that the Complainant should not have been paid for the 12 hours he was rostered but rather for 11 hours with a one hour unpaid break.

Findings of the Court

Section 25 of the Act in relevant part states

• (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 Court finds that the Complainant was rostered to work 12 hour shifts. The Court also finds that the Respondent intended that provisions for the taking of statutory breaks was provided for in the roster. It further finds that responsibility for the taking of breaks was delegated to the store manager and the security guard in each store.

In this case it is clear from the evidence presented and the records put in evidence by both parties that the Complainant was assigned to carry out a 12 hour duty each day five days per week. It was intended that he would be paid for 11 hours and take one hour as an unpaid break. In fact the records show that he worked 12 hours per day and was paid for each of those hours. Time sheets signed off by the store manager to this effect were submitted to the Company each day and the Complainant was paid on the basis of those sheets. The Court finds therefore that the Respondent had knowledge of the circumstances that applied in the store. It was aware that the Complainant was not afforded a break from work in line with Section 12 of the Act. No evidence was presented to the Court that compensatory rest was provided to the Complainant in respect of his entitlement to a daily rest period of 11 hours or of his entitlement breaks at work.

The Court finds therefore that the Respondent was aware that the Complainant was not in receipt of the statutory entitlement to breaks on each occasion on which he submitted a time sheet recording his working hours. The Court further finds that the Respondent Company took no action to ensure that he was afforded breaks in accordance with the statute.

Accordingly the Court determines that 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 €4,750.

Section 15

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

    (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 ,]
    (b) any absences from work by the employee concerned authorised under the Maternity Protection [Acts 1994 and 2004] , or the Adoptive Leave [Acts 1995 and 2005] , or

    (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,

  
  
  then a collective agreement that for the time being has effect in relation to the employee and which stands approved of by the Labour Court under section 24 may specify, for the purposes of subsection (1)(c) , a length of time in relation to the employee of more than 4 or 6 months, as the case may be (but not more than 12 months).

Position of the Complainant

The Complainant in evidence stated that he was rostered to work 12 hour shifts five days per week during which he received no breaks. He told the Court that he was notified of his rosters by sms message each week. He stated that his working week did not vary. He stated that he normally worked 60 hours per week and was paid accordingly. He stated that his average working week exceeded 48 hours per week.

Counsel for the Complainant argued that the evidence before the Court disclosed that the he was rostered to work five successive 12 hour shifts each week each of which included a break of one hour over the course of the day. The Complainant’s time sheets disclosed that he in fact worked 12 hour shifts five days per week during which he did not receive a break from work. He argued that the Respondent was aware that the Complainant was scheduled to work 60 hours per week. He argued that it paid the Complainant on the basis that he was working 60 hours per week. He argued that it took no steps to ensure that the Complainant received breaks during the working day. He further argued that the Respondent rostered and paid the Complainant to work 60 hours per week. He argued that the evidence established that the Respondent infringed section 15 of the Act.

Position of the Respondent

Counsel for the Respondent argued that the company is engaged in the Security Industry and, for the purposes of calculating the average working week, the statutory reference period is six months. He argued that the Complainant left work in October 2012 and did not submit his complaint to the Rights Commissioner until February 2013. It submits that the Court cannot consider a complaint under the Act unless it relates to an infringement that occurred within six months of the date on which the complaint is made to the Court. As the Company is entitled to calculate the average length of the working week over a six months period the infringement complained of could not have occurred within the two months reference period over which the Court has jurisdiction. It argues that the complaint therefore cannot be made out and cannot therefore be well founded.

Ms Fiona Cowhey, General Manager stated that the Complainant was rostered to work 11 hours per day over a 12 hour shift. It was intended that the roster would include a one hour break. She stated that the Complainant worked 12 hours per day and was paid accordingly.

Findings of the Court

The Court finds that the complaint is properly before it. The Act does not prohibit the Court from calculating the average working week over a period of six months provided the effect of that calculation crystalises into an infringement of section 15 of the Act within six months of the date on which the complaint was made by the Complainant to the Rights Commissioner. In this case the Complaint was made in February 2013. The Complainant left work in October 2012. The Complainant and the Respondent are entitled to calculate the average working week in the six months up to and including the date on which he ceased working for the Company. The effect of that averaging, on the information before the Court, discloses that the Complainant was required to work in excess of 48 hours per week in that period.

The Court also finds that the evidence of both the Complainant and Ms Cowhey confirms that the Respondent was at all times aware of the hours the Complainant was rostered to work and was actually working and paid him his weekly salary on that basis.

Determination

The Court determines that the complaint is well founded. The Court orders the Respondent to pay the Complainant compensation in the sum of €4,750.

Section 19 and 23

Section 19 of the Act states:

• (1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—
  • 
    (a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

    (b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

    (c) 8 per cent of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

  
  
  Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.

Section 23 of the Act states:

• (1) Where—
  • 
    (a) an employee ceases to be employed, and

    (b) the whole or any portion of the annual leave in respect of the current leave year or, in case the cesser of employment occurs during the first half of that year, in respect of that year, the previous leave year or both those years, remains to be granted to the employee,

  
  
  the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave.

Position of the Complainant

The Complainant submits that he had accrued an entitlement to 15.5 days annual leave when he terminated his employment. At that time he had taken two days leave. He submits that he is owed 13.5 days annual leave.

Position of the Respondent

The Respondent submits that the Complainant took two days holidays on the 13^thand 14^thJuly 2012 and was paid cesser pay of €933.15 in respect of his outstanding leave entitlements. It submitted copy weekly time sheets and pay slip in support of its submission.

Findings

Section 19(1) of the Act states:

• (a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

The statutory leave year commences in April each year. The Complainant resigned on 17 October 2012. In total that amounts to 25 weeks working time. The Complainant contends that he had accrued an entitlement to 15.5 days leave at that time. The Respondent submitted documents that disclose that the Complainant took two days leave in the course of the year and was paid cesser pay in respect of the balance of his entitlement. However an analysis of the Complainants hours discloses that he had accrued an entitlement to 3 days leave for which he was not compensated by way of cesser pay when his employment terminated.

Determination

The Respondent infringed Sections 19 and 23 of the Act. The Court orders the Respondent to pay the Complainant in respect of the 8 days due to him and €300 compensation for the breaches involved.

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
7 April 2014______________________
HTDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Helen Tobin, Court Secretary.