FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : FATEH DJIMANI T/A ABRAKEBABRA MAYNOOTH - AND - OLGA BARTASEVICA (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner's Decision r-133381/133383/133384/133385/133387/133389/133390/133392/133400-wt-13/RG.
BACKGROUND:
2. The Worker appealed the Rights Commissioner's Decision to the Labour Court on 30th September, 2014. A Labour Court Hearing took place on 28th November, 2014. The following is the Labour Court's Determination:
DETERMINATION:
This is an appeal by Ms Olga Bartasevica (the Complainant), against the decision of a Rights Commissionerno: r-133381/133383/133384/133385/133387/133389/133390/133392/133400-wt-13/RG,in a claim made against her former employer Fateh Djimani t/a Abrakebabra Maynooth (the Respondent) under the Organisation of Working Time Act, 1997 (the Act).
The Complainant submitted complaints alleging breaches by the Respondent under Sections 11, 12, 14, 17, 19, 21 and 23 of the Act. The Rights Commissioner found in favour of the Complainant in respect of the complaints under Sections 11, 14, 19, 21 and 23 and awarded €2,000 compensation. She did not find in favour of the complaints under Sections 12 and 17 of the Act. The Complainant appealed the findings under Sections 12 and 17 of the Act.
The Employer failed to attend the hearing.
Summary of the Complainant’s Case
Ms Ruth Lynch, Richard Grogan & Associates Solicitors, on behalf of the Complainant submitted that as the Complainant did not receive breaks of 15 minutes duration the Respondent was in breach of Section 12 of the Act. Furthermore, while the Complainant was provided with a weekly roster, she did not receive 24 hours’ notice in respect of the first day on that roster and furthermore she as she was required to work additional hours at the finish of her shift she did not receive the appropriate notification as required by Section 17 of the Act.
Evidence of Ms Olga Bartasevica
With the assistance of an interpreter the Complainant gave evidence to the Court stating that she had received breaks of between 10 and 15 minutes and also availed of approximately six smoking breaks per shift. She told the Court that on occasions she was required to work additional hours at the end of her shift depending on the needs of the business for which she signed out and was paid for the additional hours worked. She did not make any complaint to her employer about these matters.
Determination
Having considered the Complainant’s submission and the evidence taken, the Court finds that there was a breach of Section 12 and 17 of the Act, however as the Complainant could not give details regarding the frequency of occasions when she did not receive the full 15 minute break and it was not brought to the Respondent’s attention that she did not wish to work the additional hours for which she signed for and was paid, the Court takes the view that the infringements of the Act were minimal and accordingly the Court determines that the Complaint should be paid €100 compensation within six weeks of this Determination in respect of the breaches of Sections 12 and 17 of the Act.
The Rights Commissioner's Decision is varied accordingly and the Court upholds the appeals.
Signed on behalf of the Labour Court
Caroline Jenkinson
16th December, 2014______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.