FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : T&S ETHNIC RESTAURANT LTD T/A NEW MAHARAJAH - AND - MANOJ KUMAR DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner's Decision r-134213-wt-13/SR & r-135039-wt-13/SR.
BACKGROUND:
2. The Worker appealed the Rights Commissioner's Decision to the Labour Court on 22nd November, 2013. A Labour Court Hearing took place on 23rd January, 2014. The following is the Labour Court's Determination:
DETERMINATION:
This is an appeal, by Manoj Kumar (the complainant) under section 28(1) of the Organisation of Working Time Act against Rights Commissioner Decision No R-134213-WT-13/SR issued on 9 September 2013. The case came on for hearing before the Court on 23 January 2014. T&S Ethnic Restaurant T/A New Maharajah (the Respondent) attended the hearing. The Respondent was represented by Mr Lorcan Price B.L. instructed by Phelim O’Neill & Co Solicitors. The complainant attended the hearing. He pleaded his own case.
Background
The Respondent operates a restaurant in Tallaght together with a number of take away establishments in Whitehall and Clontarf, Dublin. The Complainant worked for the Respondent in a part time capacity from April 2012 until October 2012. Thereafter he worked for the Respondent in a full time capacity. The Respondent states and the Complainant disputes that he was employed to manage the Tallaght restaurant. The Complainant states that he was employed as part of the front of house staff but had no managerial responsibility.
The Court heard evidence on the matters in dispute from the complainant and from Mr Thamman Singh Bohra on behalf of the Respondent. The Court also heard from Mr Singh on behalf of the complainant.
The Complainant states that the Respondent infringed sections 11,12, 13, 14, 15, 19,20,21,22 and 23 of the Act. The Respondent denies the infringements. It further states that the Complainant was at all time in control of his own hours and does not come within the scope of the Act.
The Law
Section 3(c) excludes certain categories of persons from the scope of the Act. It states:
- (c) a person the duration of whoseworkingtime(saving any minimum period of suchtimethat is stipulated by the employer) is determined by himself or herself, whether or not provision for the making of such determination by that person is made by his or her contract of employment.
- An employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer.
- A break allowed to an employee at the end of theworkingday shall not be regarded as satisfying the requirement contained in subsection (1) or (2).
- (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).
Section 13 deals with weekly rest periods. It states:
(1) In this section “daily rest period” means a rest period referred to in section 11.
(2) Subject to subsection (3) , an employee shall, in each period of 7 days, be granted a rest period of at least 24 consecutive hours; subject to subsections (4) and (6) , thetimeat which that rest period commences shall be such that that period is immediately preceded by a daily rest period.
Section 14 deals with Sunday Work. It states:
- (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 paidtimeoff 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.
- (a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or
Section 15 Deals with weekly working hours. It 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
Section 19,20 and 23 deals with annual leave entitlements. They state:
Section 19 (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) 4workingweeks 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 aworkingweek 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 4workingweeks):
- (a) 4workingweeks 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),
Section 20 states:
- (1) Thetimes at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements and subject—
- (a) to the employer taking into account—
- (i) the need for the employee to reconcile work and any family responsibilities,
(ii) the opportunities for rest and recreation available to the employee,
(c) to the leave being granted within the leave year to which it relates or, with the consent of the employee, within the 6 months thereafter. - (i) the need for the employee to reconcile work and any family responsibilities,
(2) The pay in respect of an employee's annual leave shall—- (a) be paid to the employee in advance of his or her taking the leave,
(b) be at the normal weekly rate or, as the case may be, at a rate which is proportionate to the normal weekly rate, and
(c) in a case in which board or lodging or, as the case may be, both board and lodging constitute part of the employee's remuneration, include compensation, calculated at the prescribed rate, for any such board or lodging as will not be received by the employee whilst on annual leave.
(3) Nothing in this section shall prevent an employer and employee from entering into arrangements that are more favourable to the employee with regard to the times of, and the pay in respect of, his or her annual leave.
(4) In this section “normal weekly rate” means the normal weekly rate of the employee concerned's pay determined in accordance with regulations made by the Minister for the purposes of this section . - (a) to the employer taking into account—
Section 21 deals with Public Holidays. It 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,
Section 23 deals with cesser pay. It 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,
- (a) an employee ceases to be employed, and
Section 25 of the Act deals with the obligations on an employer to keep records and with the consequences of failing to do so. It 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.
- (2) An employee or any trade union of which the employee is a member, with the consent of the employee, may present a complaint to a rights commissioner that the employee's employer has contravened a relevant provision in relation to the employee and, if the employee or such a trade union does so, the commissioner shall give the parties an opportunity to be heard by the commissioner and to present to the commissioner any evidence relevant to the complaint, shall give a decision in writing in relation to it and shall communicate the decision to the parties.
(4) A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.
Preliminary Issue
The Respondent argues that the Complainant was employed as a manager and was responsible for managing his own time and accordingly does not come within the scope of the Act.
The Court heard evidence from both the Complainant and the respondent. The Complainant stated that he was not a manager and had no control over his own working hours. He reported for work at the appointed time and remained at work until his shift finished. He did not supervise staff and was not accountable for their attendance or performance at work. He was not in a position to determine his own hours. These were determined by the opening and closing times of the restaurant and he was scheduled to work at those times.
The Respondent argues that the Complainant was the manager of the restaurant and was free to determine his own working day.
Mr Singh told the Court that he did not consider the Complainant his manager. He reported to the Respondent and engaged with him regarding his work and his attendance.
Findings of the Court
The Court finds that the Complainant was employed to work hours set by the Respondent and was not in control of his own hours. He working hours were determined by the hours of business of the restaurant and his roster was determined by the Respondent.
Determination
The Court determines that the Complainant comes within the scope of the Act.
Reference period
It is common case that the complainant ceased working for the Respondent on 2 December 2012. He submitted a complaint to the Rights Commissioner on 24 May 2013. In accordance with Section 27 of the Act the Court has jurisdiction to entertain infringements that occurred within six months of 24 May 2013. Accordingly the Court may entertain infringements that occurred between 25 November and 2 December 2012.
Section 11 Daily Rest Periods
The Complainant states that he commenced work each morning at 10 a.m. and following a 2 hour break in the middle of the day finished work at midnight. He states that as a consequence he did not have the benefit of an 11 hour break between the end of one shift and the commencement of the next shift.
Mr Singh told the Court that he worked similar hours but finished work when the kitchen closed rather than when the customers had vacated the premises and the restaurant cleaned and secured. He said that this would be some time after the last orders were taken which was 11:30 on week days and 11:00 on Sunday. He stated that the Complainant commenced work at 10:00 each morning.
The Respondent stated that the Complainant did not work in the morning. He commenced work at 16:00 hours each day and thereby enjoyed an 11 hour break between shifts.
Findings of the Court
The Respondent stated that he did not keep records as required by Section 25 of the Act. The burden of proving compliance with the Act therefore lies with the Respondent.
On the evidence presented the Court finds that the Respondent has failed to discharge the burden of proving compliance with the section 11 of the Act. The Court finds that the Respondent infringed the provision in the relevant period.
Determination
The Court determines that the complaint is well founded. The Court orders the respondent to pay the complainant compensation in the sum of €200.00.
Section 12 Rest and Breaks at Work
The Complainant states that he commenced work at 10:00 each morning in the relevant period and that he worked until midnight during which time, contrary to section 12 of the Act, he did not receive a break at work. Mr Singh gave evidence to the Court that there was no practice of taking breaks in the restaurant. Both he and the Complainant stated that staff stopped for short periods of time to eat some food but there was no set breaks during which they were free to dispose of their time as they wished.
The Respondent stated that the staff were free to take breaks and did so on a regular basis. He stated that they took regular breaks for cigarettes and that they took breaks in accordance with Section 12 of the Act as the restaurant was very slow and there was ample time to take breaks.
Findings of the Court
The Court finds that the Respondent did not keep records of breaks taken by staff generally or by the Complainant in particular. The onus of proving compliance with the Act lies with the Respondent.
Due to inconsistencies in the evidence given by the Complainant and Mr Singh the Court finds, on the balance of probabilities, that the Complainant did take breaks in accordance with section 12 of the Act. The inconsistencies the Court has taken into account include a statement by the Complainant that he took no breaks yet stated also that he consumed food on the premises at different times during the working day. He stated that he received no breaks but stated that he left the restaurant between 2:30 and 4:00 p.m. when he chose to do so as he had no work to do at that time. He stated that he did not stop work after he resumed work at 4:00 p.m. but again stated that he stopped for food in the evening time.
On the balance of probabilities therefore the Court finds that the Complainant did take breaks in line with Section 12 of the Act.
Determination
The Court determines that the Complaint is not well founded.
Section 13 Weekly Rest Periods
The Complainant states that, contrary to section 13 of the Act he was required to work seven days per week.
The reference period covered by the Act is very short. In his evidence the Complainant referred to a general obligation to occasionally work seven days per week. He gave no evidence that he was required to work seven days in the relevant period. Accordingly the Court finds that the complaint has not been made out.
Determination
The Complaint is not well founded. The appeal is not upheld.
Section 14 Sunday Work
It is common case that the Complainant worked on Sunday. The Complainant states that he did not receive a premium for Sunday work. The respondent states that the Complainant was paid a premium of €0.10 cent per hour for working on Sunday.
Findings
The Court has examined the Complainant’s hourly rates of pay outlined by the Respondent in the course of his evidence. The Court calculates that the rates contended for by the Respondent do not match the weekly amounts he claimed in evidence he paid the Complainant. No records of pay slips or other evidence of a Sunday premium were given to the Court. Accordingly the Court finds that the Complainant was not paid a premium in respect of the hours he worked on the relevant Sunday.
Determination
The Complaint is well founded. The Court orders the Respondent to pay the Complainant compensation of €100.
Section 15 - 48 Hour Week
The Complainant states that he worked from 10:00 until 2:00 p.m. each day and thereafter from 4:00 p.m. until midnight. He states that he worked at least five days and on occasions 6 and or 7 days per week. Mr Singh told the Court that that it was quite common for staff to work those hours.
The Respondent states that the Complainant commenced work at 4:00 p.m. and finished at 12 midnight. He told the Court that the Complainant was rostered to work 5 days each week Wednesday through to Sunday and rested on Monday and Tuesday each week. He argues that the Complainant’s hours did not exceed 48 hours in the relevant week.
Findings of the Court
The Respondent did not keep records of the Complainants hours. Therefore the burden of proving compliance with the Act lies with the Respondent.
The Court finds the Complainant’s evidence more compelling on this point. Both he and Mr Singh told the Court that the he commenced work each morning no later than 10 a.m. He carried out such duties as were assigned to him by the Respondent. He served the lunch trade and broke for two hours in the afternoon. He then returned to work until the restaurant closed which was sometime around midnight.
The Respondent contradicted himself in evidence on this point. He variously said the restaurant was simultaneously open and closed for the lunch trade. That the complainant did not work the lunch trade but took his break between 2:00 and 4:00 p.m. Clearly there could be no break if the complainant was not at work.
On balance the Court finds that the Complainant worked the hours he claimed in the relevant period. On that basis the Court finds that the Complainant worked in the region of 60 hours in the relevant week.
The Complaint is well founded. The Court orders the Respondent to pay the Complainant compensation of €300.
Sections 19,20 and 23 Annual Leave.
The Complainant states that he worked between April and October in a part time capacity and between October 2ndand December 2nd2009 in a full time capacity for the Respondent during which time he received neither holidays or cesser pay in lieu of holidays.
The Respondent states that the Respondent did not seek to take holidays in the relevant period. He states that he gave the Complainant €1,500 cesser pay which amount included outstanding holiday pay.
Findings of the Court
The Complainant worked 22 hours per week for 26 weeks and 60 hours for 8 weeks which totals to 1052 hours. Under the Act this gives rise to an entitlement to 84 hours holiday pay on leaving employment. The Complainant was paid €500 per week. On that basis the Complainant was entitled to €1,000 cesser pay in respect of outstanding annual leave on the termination of his employment.
The Court is not convinced that the €1,500 allegedly paid to the Complainant was in fact received by him or that it was payment in respect of outstanding annual leave entitlement owed to him at that time. No pay slips disclosing cesser pay was opened to the Court.
Accordingly the Court finds that the Respondent has failed to establish that he paid the Complainant cesser pay in respect of the outstanding annual leave he had accrued by the time his employment ended.
Determination
The Complaint is well founded. The Court orders the Respondent to pay the Complainant compensation in the sum of €1,250.
Section 21, 22 and 23 Public Holiday Entitlements
The Court determines that no public holiday fell in the relevant period.
Signed on behalf of the Labour Court
Brendan Hayes
8th April, 2014______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.