FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : TRINITY LODGE LIMITED T/A TRINITY LODGE - AND - MIRELA CATARAMA (REPRESENTED BY STEPHEN SPIERIN B.L., INSTRUCTED BY THE NORTHSIDE COMMUNITY LAW CENTRE) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. An appeal against a Rights Commissioner Decision r-139325-wt-13/RG.
BACKGROUND:
2. The Worker appealed the Rights Commissioner's Decision to the Labour Court on the 9th June 2014 in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 23rd July 2014. The following is the Determination of the Court.
DETERMINATION:
This is an appeal by Ms Mirela Catarama (hereafter referred to as the Complainant) against the Decision of the Rights Commissioner Decision No: r-139325-wt-13/RG, in her complaint against her former employer Trinity Lodge Limited t/a Trinity Lodge (hereafter referred to as the Respondent) made under the Organisation of Working Time Act 1997 (the Act). The Rights Commissioner held that her complaint was well-founded in part, and held that the Respondent was in breach of Section 12 of the Act and of S.1. 21 of 1998 in relation to ensuring that the Complainant was provided with rest breaks at work after working 6 hours. The Rights Commissioner awarded compensation in the sum of €200.00.
Preliminary Issue
Mr Stephen Spierin B.L., on behalf of the Complainant submitted that the Rights Commissioner erred in basing her decision on a six month time period prior to the date of complaint. He submitted that there was reasonable cause for the Rights Commissioner to consider extending the period to 12-months. He submitted that the Complainant is a not an Irish National and therefore she was not familiar with work practices in this jurisdiction, and secondly that she made attempts to find an amicable resolution to the issues raised before making a formal complaint, she sought advice from the Citizen's Advice Centre and also from NERA.
Mr Peter Murphy, the Respondent stated that he was onsiteat the Hotel at least 6 out of every 7 days for the entirety of the Complainant’s employment and at no stage did shespeak to him about her employment except for ameeting on 20thAugust 2013,
approximately 3 weeks after she was advised her contract would not berenewed.
Section 27 (4) of the Act states
- “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.”
Section 27(5) states
- “Notwithstanding subsection (4), a rights commissioner may entertain a complaint under this section presented to him or her after the expiration of the period referred to in subsection (4) (but not later than 12 months after such expiration) if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause.”
Accordingly, the period from 24thApril 2013 until 30thAugust 2013 is in time.
Background
The Respondent is a small Guesthouse operating in the Tourism Sector. The Complainant was employed by the Respondent as a Receptionist in the Guesthouse from 30thAugust 2012 until 30thAugust 2013. Hercontract of employment provided that her normal workinghours"shall be 7:30am to 3:00pm or 3:00pm to 10:00pm"and she"may be requiredtowork such hours outside normal hours of employment as the Employerconsiders necessary to meet the needsof the business."
The nature of the complaints being pursued by the Complainant related to alleged breaches of Sections 11, 12, 13 and 17 of the Act.
Her employment came within the ambit of the Organisation of Working Time (General Exemptions) Regulations 1998 (S.I. No. 21 of 1998) (the Regulations). These Regulations exempt,inter alia,workers engaged in tourism from the requirements of Sections 11, 12, 13, and 16 of the Act. Regulation 4 of the Regulations provides, in effect, that an employee covered by these exemptions shall be provided with equivalent compensatory rest.
Section 11 Claim
Mr Spierin stated that the complaint under Section 11 relates to the Respondent's failure to provide her with a daily rest period of at least 11 consecutive hourson twelve occasions in the cognisable period covered by the claim (details were supplied to the Court).He accepted that compensatory rest pursuant to S.I.21/1998was provided to the Complainant on only one of these occasions (on 25thApril 2013).Furthermore, he
submitted that contrary to the Respondent’s contention the Complainant did not give herconsent to stay longer than her shift, due to that fact that no night staff were employed in the Guesthouse, she had no choice but to stay when required to wait onthe last guest to arrive at the Guesthouse.
In support of his contention Mr Spierin citedCommission v United Kingdom[2006] E.C.R. 1-7471, the European Court of Justice ruled that employers must ensure that their employees take this rest period. The Court approved the comments of the Advocate General in this case where she observed:
- “it is for the employer actively to see to it that an atmosphere is created in the firm in which the minimum rest periods prescribed by Community law are also effectively observed. There is no doubt that this first presupposes that within the organisation of the firm appropriate work and rest periods are actually scheduled. In addition it must, however, be a matter of course within a business, in practice as well, that workers’ rights to rest periods not only exist on paper but can effectively be observed. In particular, no de facto pressure should arise which may deter workers from actually taking their rest periods.”
Hesubmitted that whilst rosters may have been designedto provide an 11-hour daily
restperiod betweenshifts,the reality was that on a number of occasionsit was not
possibleforthe Complainant to availof those breaks.Accordingly there was an ongoing opportunityfor the Respondent to putsystemsin place to alertit to the occurrence of
suchbreaches of the Act and to put remedialmeasuresin placethatwould ensurethatcompensatoryrest was provided to the Complainant,however the Respondenttookno action. He submitted that proper planning could have facilitated late check-ins without the Complainant having to stay later than scheduled.
The Respondent, Mr Murphy accepted that the Complainant did not receive her daily rest period of at least 11 consecutive hours on the occasions in question. He stated that some evening shifts had to be extended due to the late arrival of guests and were also accounted for by management’s facilitation of staff requests for changes in shifts/days off. He said that these were unforeseeable matters and were beyond the Respondent’s control. Mr Murphy submitted that compensatory restpursuant toS.I.21/1998wasprovided to the Complainantafter each of these occasions.
Mr Spierin disputed this contention and submitted that as the Respondentfailed to give due regard to the need to protect and secure the health,safety and comfort of the employee and to the general principle concerning the prevention and avoidance of risk in the workplace on a consistent and frequent basis, it therefore failed to comply with Regulation 5(1) or (2) and accordingly cannot avail of the exemptions provided for in SI 21/1998.
In support of this contention in relation to the claims under Sections 11, 12, and 13 of the Act, he relied upon the Determinations of this Court inTifco Limited v Smietana Determination No: DWT11124 and Monkland Oyster Hotels Ltd v SmithDetermination No:DWT1074/2010where the Court held that the exemptions are not absolute.
The Court said inTifco:-
- "However the exemption provided for inSI21/1998is not absolute. It only
applies if the employer complies with the provisions of Regulation5of the
Statutory Instrument."
This statement reflects Regulation 3 of the SI 21/1998, specifically 3(1) and 3(3) state:
- "(1) Without prejudice to Regulations4and5of these Regulations and
subject to the subsequent provisions of this Regulation, each of the activities specified in the Schedule to these Regulations is hereby exempted from the application of sections11, 12, 13and16of the Act.
"(3) The exemption shall not apply,asrespectsaparticular employee, if and forsolongasthe employer does not comply with Regulation5of these
Regulations in relation to him or her."
Section 12 Claim
Mr Spierin submitted that the Complainant was never given a break while at work. When she approached management about her break entitlement, it was indicated to her that she could havea tea or coffee and small snack at the reception desk, as she was not permitted to leavethe reception area unattended and there was no other staff member to relievethe Complainant, particularly at weekends when she was the only staff member on duty. Furthermore, he submitted that there no system in place to record staff breaks.
Mr Murphy disputed this contention and stated that all employees receive breaks during their shifts. He said that due to the nature of the business, breaks from reception work would not always be at regular times and would often be split into two smaller breaks. For this reason the Complainant’s breaks times were paid and she was not required to clock-in or out when taking breaks.
Section 13 Claim
Mr Spierin submitted that the Complainant worked for more than 5 consecutive days without a 24-hour rest period on 7 occasions during the cognisable six month period covered by the claim (details supplied to the Court). And on one of those occasions, commencing on 31stMay 2013 she worked 12 consecutive days without a break.
Mr Murphy stated that it was clear from the clocking in/out records that there was only one occasion in the cognisable period when the Complainant did not receive the required weekly rest periods and she received Compensatory Rest as set down bySI21/1998. Mr Murphy submitted that the reason the weekly rest period was not provided was due to the Complainant covering shifts for other employees on annual leave.
Section 17 Claim
Mr Spierin submitted that the Complainant was required to stay later than her rostered finishing time on 22 occasions during the cognisable period covered by the claim. He disputed the Respondent’s contention that the Complainant was given the choice if she wished to work beyond her rostered finishing time, when a late guest arrival was anticipated. He submitted that as the Complainant was not always notified of the requirement to stay beyond her scheduled finishing time the Respondent was in breach of Section 17 of the Act.
Mr Murphy in defence of this claim referred to the Complainant’s clock in/out records, he submitted that it is clear from those records thather finishing times were predominantly consistent with the normal finishing times. However, in the event of a late guest arrival, where possible the Complainant was advised of the situation inadvance and was given the option to stay longer or the guest arrival would be attended to by the manager.
Findings of the Court
The Court has considered the written and oral submissions of the parties. Evidence was given by the Complainant and by Mr Murphy.
In general SI 21/1998 exempts those in the tourism industry from the provisions of Sections 11, 12, 13 and 16 of the Act. It is common case that the Respondent works within the tourism industry.
However as was held inTifcothe exemption provided for in SI 21/1998 is not absolute. In accordance with the provisions of Regulations 3 it can only apply if the employer complies with the provisions of Regulation 5 of the Statutory Instrument.
Regulation 3(1) states:
- Without prejudice to Regulations 4 and 5 of these Regulations and subject to the subsequent provisions of this Regulation, each of the activities specified in the Schedule to these Regulations is hereby exempted from the application of sections 11, 12, 13 and 16 of the Act.
Regulation 3(3) states
- The exemption shall not apply, as respects a particular employee, if and for so long as, the employer does not comply with Regulation 5 of these Regulations in relation to him or her.
Regulation 4 of SI 21/1998 states:
- 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.
Regulation 5 provides
- (1) An employer shall not require an employee to whom the exemption
applies to work during a shift or other period of work (being a shift or other such period that is of more than 6 hours duration) without allowing him or her a break of such duration as the employer determines.
(2) In determining the duration of a break referred to in paragraph (1) of this Regulation, the employer shall have due regard to the need to protect and secure the health, safety and comfort of the employee and to the general principle concerning the prevention and avoidance of risk in the workplace.
InTifcothe Court held that two separate duties are imposed on the Employer;
- (a) under Regulation 4 of the SI he must give employees rest breaks which can reasonably be regarded as being equivalent to those set out in Sections 11, 12 and 13 of the Act and;
(b) under Regulation 5 of the SI he cannot allow an employee to work for more than six consecutive hours with allowing him a break sufficient to protect the employees' health, safety and comfort and to avoid any risk in the workplace.
Accordingly, the Court must determine if the Respondent was compliant with the provisions of Regulations 4 and 5 of the Statutory Instrument before determining whether and the extent to which the Respondent can avail of the exemptions under Sections 11, 12 and 13 of the Act.
Court’s Findings - Section 12 Claim
In her evidence to the Court the Complainant stated that she was required to work the reception desk at all times and accordingly was not in a position to avail of a break away from the reception desk. She said that she could avail of tea or coffee and a snack but had to consume her food while attending the reception desk. She said that she had been instructed by her manager not to leave the reception desk during her breaks. The Complainant said that there was no one to take over her duties to allow her avail of a break. She said that when she raised the issue of breaks she was informed that the priority was to ensure that the reception desk was manned at all times.
In his evidence to the Court Mr Murphy told the Court that the Complainant had her break between 12.00 – 12.30pm when she was on the early shift and between 6.30 and 7.00pm when she was on the late shift. He said that there was a digital telephone system in operation which allowed for messages to be taken in the event that calls came in while the Complainant was on her break. He said that there was a kitchen close to reception which she could avail of to take her breaks.
In response to questions from the Court the Respondent said that the Manager of the Hotel relieved the Complainant of her reception duties to allow the latter avail of her breaks. In his submission Mr Murphy said that breaks from reception work would not always be at regular times and would often be split into two smaller breaks but made no reference to the Manager relieving the Complainant on a daily basis.
The Court was presented with conflicting evidence on behalf of the Respondent and that tendered by the Complainant, having considered the evidence the Court prefers the evidence tendered by the Complainant. Therefore, the Court is not satisfied that the Complainant was facilitated with adequate or appropriate arrangements to take the breaks to which she was entitled to, contrary to Section 12 of the Act. On the basis the Court finds that the Respondent did not meet its obligation under Section 12 of the Act.
In order to rely on the exemptions available under S.I. No 21/1998, pursuant to Regulation 3 (3) the Respondent must be in compliance with Regulation 5 of the Statutory Instrument.
Accordingly, the Court finds that the Respondent failed to discharge the onus of proving compliance with Section 12 of the Act in respect of the Complainant and failed to allow her a break contrary to Regulations 4 and 5 (1) of S.I. 21/1998. Accordingly, the exemption provided in Regulation (3) does not apply in this respect.
The Court upholds the complaint under Section 12 of the Act.
Court’s Finding – Sections 11 and 13 Claims
The Respondent accepted that it was not in compliance with Sections 11 and 13 of the Act as there were occasions when the Complainant did not receive her daily rest period of at least 11 consecutive hours and relied on the provisions of SI 21/1998 in its defence. Furthermore, based on the clock in/out information furnished to the Court, it is satisfied that there were a number of occasions when the Complainant did not receive the required weekly rest periods, again the Respondent relied upon the provisions of SI 21/1998.
The Court upholds the complaint under Sections 11 and 13 of the Act.
Court’s Finding – Section 17 Claim
It was submitted that as the Complainant was not always notified of the requirement to stay beyond her scheduled finishing time the Respondent was in breach of Section 17 of the Act. Hercontract of employment provided details of her normal workinghours and stated that she may be requiredtowork outside these hours as the Respondent
considers necessary to meet the needsof the business.
Section 17(2) of the Act provides: -
“ If the hours for which an employee is required to work for his or her employer in a week include such hours as the employer may from time to time decide (in this subsection referred to as “additional hours”), the employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in that week on which he or she proposes to require the employee to work all or, as the case may be, any of the additional hours, of the times at which the employee will be required to start and finish working the additional hours on each day, or, as the case may be, the day or days concerned, of that week.”
Subsection (4)provides:-
- “A notification to an employee, in accordance with this section, of the matters referred to in subsection (1) or (2), as the case may be, shall not prejudice the right of the employer concerned, subject to the provisions of this Act, to require the employee to start or finish work or, as the case may be, to work the additional hours referred to in subsection (2) at times other than those specified in the notification if circumstances, which could not reasonably have been foreseen, arise that justify the employer in requiring the employee to start or finish work or, as the case may be, to work the said additional hours at those times.”
Where an employee has a contractual entitlement to a fixed starting and finishing time he or she cannot be obligated to start or finish work at any other time as any variation from the contractual term can only be by mutual agreement. Where, however, an employee’s starting and finishing time is determinable solely by the employer the law requires that in order to maintain some degree of work / life balance reasonable notice of starting and finishing times must be furnished by the employer.
The records provided to the Court indicate that the Complainant’s finishing times consistently exceeded the rostered times.
The Complainant’s evidence, which the Court accepts, was that she regularly had to stay late to accommodate late guest arrivals, there was no other person on duty in the Guesthouse and the Manager would not take calls to relieve her. She said that in the main she did not have prior notification of these finishing times. Occasionally the booking details provided notification of late arrival, however as most were internet bookings these details were not provided and flight delays etc. accounted for other late finishing times.
The Respondent contended that where the Complainant was assigned additional duties it was because of unforeseen circumstances arising and it relied on subsection (4) of Section 17 in defence of its position. It submitted that in such circumstances the Complainant had the option of staying until midnight, after which time the Manager could be called in to replace her.
The language of Section 17(4) of the Act indicates that it is directed at a situation in which the requisite starting or finishing times are given and some unforeseen event intervenes. In this case the Employer did not give notification of late finishing times, it was left to the Complainant to deal with such events as they arose. There were no facilities in place to deal with such contingencies and the frequency with which these occurrences occurred suggests that they could not come within the meaning of the term “unforeseen” within Section 17 (4) of the Act.
Accordingly, the Respondent cannot avoid liability by reliance on Section 17(4) of the Act. Therefore the Court upholds the complaint.
Determination:
The Court upholds the complaints under Sections 11, 12, 13 and 17 of the Act.
Therefore the Court overturns the Decision of the Rights Commissioner under Sections 11, 13 and 17 of the Act and varies the Decision under Section 12 of the Act. The Complainant’s appeal succeeds.
Remedy
The Court has given careful consideration to the various claims raised by the Complainant and in all the circumstances of this case and taking account of the CJEU caseVon Colson & Kamann v Land Nordrhein – Westfalen[1984] ECR 1891 where the CJEU made it clear that where such a right grounded in European law is infringed the judicial redress provided should not only compensate for economic loss sustained but must provide a real deterrent against future infractions.
Having taken all factors into account the Court sets aside the Decision of the Rights Commissioner and awards the Complainant compensation in the sum of €5,000.00 for all of the issues before it in this case.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
CR______________________
31st July, 2014.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.