FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : TANSEY TRANSPORT LIMITED (REPRESENTED BY MANAGEMENT SUPPORT SERVICES (IRELAND) LTD) - AND - ROBERT SAUTER (REPRESENTED BY RICHARD GROGAN & ASSOCIATES, SOLICITORS) DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. An appeal of a Rights Commissioner's Decision r-117424-wt-11/DI.
BACKGROUND:
2. The Worker appealed the Rights Commissioner's Decision to the Labour Court on 19th November, 2012 in accordance with Section 28(8) of the Organisation of Working Time Act, 1997. Three Labour Court hearings took place on the 23rd April 2013, 25th June 2013 and on the 7th February 2014. The following is the Determination of the Court.
DETERMINATION:
This is an appeal by Mr Robert Sauter (“the Complainant”) under Section 28 of the Organisation of Working Time Act 1998 (“the Act”) against a decision of the Rights Commissioner bearing the number r-117424-wt-11/DI. The Rights Commissioner decided that Tansey Transport Ltd (“the Respondent”) contravened sections 11, 12 and 15 of the Act in respect of the Complainant. He required the Respondent to pay the Complainant compensation €1,500 in respect of the contravention of Section 11 of the Act, €1,000 in respect of the contravention of Section 12 of the Act and €1,500 in respect of the contravention of Section 15 of the Act.
The Rights Commissioner decided that the Respondent had not contravened Sections 13, 14, 17, 19, 21 and 23 of the Act.
The Complainant appealed against the decisions of the Rights Commissioner, to this Court, under Section 28(1) of the Act. The Respondent did not appeal against the Rights Commissioner’s decisions.
The case came on for hearing before this Court on the 23rdApril 2013. At the request of the Respondent, the Court adjourned the case to the 25thJune 2013. The matter was heard on that date. Additional submissions on a number of items were requested by the Labour Court. Final submissions from the parties were received by the Court on 2nd August, 2013.
Background
The Respondent Company operates a national and international haulage business. The Respondent employed the Complainant as a driver from the 17thApril 2007 until the 27thSeptember 2011. There is a dispute between the parties as to whether the Complainant’s employment had been continuous over that period. The Complainant claimed that it had been. The Respondent claimed that it had been interrupted from the 1stJuly 2011 until the 31stJuly 2011. The Complainant was paid €850 gross, based on a 90 hour fortnight and in addition received a subsistence allowance of €250 per week.
The Complainant worked for 4 to 6 weeks at a time delivering goods between Ireland and Europe. The tractor units he drives have sleeping accommodation for his use.
Complaints - Preliminary Issue
The Complainant initially appealed against each of the decisions the Rights Commissioner made. However, at the commencement of the investigation by the Labour Court, he withdrew the appeals against the Decisions the Rights Commissioner made in respect of the Complaints under Sections 11, 12 and 15 of the Act. The Respondent argued that the Complainant had no entitlement to withdraw the appeals. It argued that the Complainant had appealed against the Rights Commissioner’s decision and having done so he opened all of the complaints to investigation by the Court.
The Law
Section 27 of the Act states:
- (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.
(3) A decision of a rights commissioner under subsection (2) shall do one or more of the following:- (a) declare that the complaint was or, as the case may be, was not well founded,
(b) require the employer to comply with the relevant provision,
(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the employee's employment,
and the references in the foregoing paragraphs to an employer shall be construed, in a case where ownership of the business of the employer changes after the contravention to which the complaint relates occurred, as references to the person who, by virtue of the change, becomes entitled to such ownership.
(5) 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.
(6) A complaint shall be presented by giving notice thereof in writing to a rights commissioner and the notice shall contain such particulars and be in such form as may be specified from time to time by the Minister.
(7) A copy of a notice under subsection (6) shall be given to the other party concerned by the rights commissioner concerned.
(8) Proceedings under this section before a rights commissioner shall be conducted otherwise than in public.
(9) A rights commissioner shall furnish the Labour Court with a copy of each decision given by the commissioner under subsection (2).
(10) The Minister may by regulations provide for any matters relating to proceedings under this section that the Minister considers appropriate. - (a) declare that the complaint was or, as the case may be, was not well founded,
Section 28 of the Act, in relevant part states:
- (1) A party concerned may appeal to the Labour Court from a decision of a rights commissioner under section 27 and, if the party does so, the Labour Court shall give the parties an opportunity to be heard by it and to present to it any evidence relevant to the appeal, shall make a determination in writing in relation to the appeal affirming, varying or setting aside the decision and shall communicate the determination to the parties.
(2) An appeal under this section shall be initiated by the party concerned giving, within 6 weeks of the date on which the decision to which it relates was communicated to the party, a notice in writing to the Labour Court containing such particulars as are determined by the Labour Court under subsection (4) and stating the intention of the party concerned to appeal against the decision.
(3) A copy of a notice under subsection (2) shall be given by the Labour Court to the other party concerned as soon as may be after the receipt of the notice by the Labour Court.
(4) The following matters, or the procedures to be followed in relation to them, shall be determined by the Labour Court, namely—- (a) the procedure in relation to all matters concerning the initiation and the hearing by the Labour Court of appeals under this section ,
(b) thetimes and places of hearings of such appeals,
(c) the representation of the parties to such appeals,
(d) the publication and notification of determinations of the Labour Court,
(e) the particulars to be contained in a notice under subsection (2) ,
(f) any matters consequential on, or incidental to, the foregoing matters.
- (a) the procedure in relation to all matters concerning the initiation and the hearing by the Labour Court of appeals under this section ,
Section 28(6) of the Act states:
- (6) A party to proceedings before the Labour Court under this section may appeal to the High Court from a determination of the Labour Court on a point of law and the determination of the High Court shall be final and conclusive.
Findings of the Court
The Complainant initiated a complaint to the Labour Court on the 19thNovember 2012 against a decision of the Rights Commissioner that issued on the 15thNovember 2012. In the notice of appeal the Complainant stated that he was appealing against the quantum awarded by the Rights Commissioner in respect of the contraventions of Sections 11, 12, and 15 of the Act. He further stated that he was appealing against the decisions of the Rights Commissioner in respect of the alleged contraventions of Sections 13, 14, 19, 21 and 23. At the commencement of the Courts investigation into the complaints he withdrew the appeals he had entered against the decision of the Rights Commissioner in respect of the contraventions of Sections 11, 12 and 15 of the Act. The Respondent argued that the Complainant had appealed against Rights Commissioner Decision Number r-117424-wt-11/DI and the Court was now obliged to investigate all the complaints de novo.
The Court does not accept the argument advanced by the Respondent. The Complainant complained that the Respondent contravened a number of sections of the Act. Each complaint raises a possible contravention of the Act, is independent of the others and must be dealt with as such by the Rights Commissioner and by this Court. The fact that the Rights Commissioner issued his decision on each of the complaints in one document does not alter the independent nature of each of the complaints. Accordingly the Court is bound to consider only those complaints that have been appealed by either party and to hear the evidence relating to each of them de novo. It cannot compel either side to enter or continue an appeal under the Act. Accordingly the Court holds against the Respondent on this point.
The Respondent further argues that once an appeal is commenced by either party it cannot be withdrawn. The Court takes the view that both the Complainant and the Respondent had the opportunity to appeal against each of the decisions of the Rights Commissioner. The Complainant chose to initiate appeals against all of the decisions the Rights Commissioner made but for different reasons in each case. The Complainant then chose to withdraw the appeals he had initiated in respect of Sections 11, 12 and 15 of the Act. The Respondent seeks to compel the Complainant to proceed with those appeals.
Having heard submissions from both sides in this matter the Court takes the view that the Respondent could only sustain its argument on this point if it could identify some disadvantage that would flow to it from a decision by the Court to allow the Complainant withdraw his appeal. In this case the Court can identify no disadvantage the Respondent might suffer if it so allows the Complainant. The Respondent had the opportunity to appeal against the Rights Commissioner’s Decisions in respect of Sections 11, 12 and 15 of the Act and chose not to do so. It now seeks to compel the Complainant to continue with an appeal against it's will, an appeal that it decided not to make when it had the opportunity to do so.
The Court sees no merit in the Respondent’s argument. To compel the Complainant to continue with an appeal it clearly no longer withes to pursue would, in the Court’s view, be a contrary to public policy and a waste of Court time. Moreover allowing the Complainant to withdraw the appeals can have no detrimental effect on the Respondent as it chose not to initiate appeals against those decisions when it had the opportunity to do so. Accordingly the Court holds against the Respondent on this point also.
Determination
The Court determines that the Complainant’s appeals against the Rights Commissioner’s decisions under Sections 11, 12 and 15 of the Act are no longer before it.
Sections 17, 19 & 20
The Complainant advised the Court that he was not pursuing an appeal against the decision of the Rights Commissioner under Sections 17, 19 and 20 of the Act.
Section 13
The Rights Commissioner decided that the Respondent did not contravene Section 13 of the Act. The Complainant appealed against that decision to this Court.
Complainant’s Position
The Complainant states that his employer at no point provided him with a written statement of his terms and conditions of employment and therefore he had no contractual obligation to work on Sundays. He contends that the Respondent contravened section 15 (5) of the Act by requiring him to work on Sunday.
Respondent’s Position
The Respondent submits that the Complainant was recruited to work shifts over seven days subject to working a maximum 90 hours per fortnight. It submits that the Complainant worked that pattern from the commencement of his employment and was fully aware that the requirement to work on Sunday was part of his contractual obligations to the company.
The Respondent acknowledges that it did not provide the Complainant with a written statement of his terms of Employment.
The Law
Section 13 of the Act in relevant part states:
(5) Save as may be otherwise provided in the employee's contract of employment—- (a) the rest period granted to an employee under subsection (2) , or
(b) one of the rest periods granted to an employee under subsection (3) , shall be a Sunday or, if the rest period is of more than 24 hours duration, shall include a Sunday.
(6) The requirement in subsection (2) or paragraph (a) or (b) of subsection (3) as to the time at which a rest period under this section shall commence shall not apply in any case where, by reason of a provision of this Act or an instrument or agreement under, or referred to in, this Act, the employee concerned is not entitled to a daily rest period in the circumstances concerned.- (a) the rest period granted to an employee under subsection (2) , or
Section 13 (5) of the Act provides that a worker is entitled to Sunday as a rest day unless it is otherwise provided for in the employee’s contract of employment. Where a contract of employment is in writing its terms can be examined and the matter determined. In this case the Respondent acknowledges that it did not provide the Complainant with a written copy of his contract of employment. In those circumstances the burden of proving that the requirement to work on Sunday was part of the Complainant’s contract of employment lies with the employer.
In discharge of that burden the Respondent states that the Complainant worked on Sunday and was well aware that it was part of his contract of employment to do so.
The Court does not accept that such a statement discharges the burden of proving that the requirement to work on Sunday was provided for in the Complainant’s contract of employment. Nor does the Court concur with the Rights Commissioner’s findings that working on Sunday is “custom and practice” in the industry. No evidence of such a custom and practice was presented to this Court nor is it referenced in the Rights Commissioner’s findings.
Accordingly the Court finds that the Respondent has failed to meet the burden of proving compliance with Section 13(5) of the Act.
Determination
The Respondent contravened Section 13(5) of the Act in respect of the Complainant. The Court requires the Respondent to pay the Complainant compensation in the sum of €500.
The decision of the Rights Commissioner is set aside.
The Court so determines.
Section 14
The Complainant complained that the Respondent contravened Section 14 of the Act by failing to pay him a premium for the work he performed when working on a Sunday.
Complainant’s Position
The Complainant states that when he worked on Sunday he received no premium payment for working on that day. He submits that he was never informed that the rate of pay he received included a premium for working on Sunday. He further submits that his pay slip shows no premium for working on that day.
The Respondent submits that the Complainant was paid €9.44 per hour. It submits that this is a composite rate that includes a premium for working on Sunday.
The Law
Section 14 of the Act 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.
(2) Subsection (3) applies to an employee where the value or the minimum value of the compensation to be provided to him or her in respect of his or her being required to work on a Sunday is not specified by a collective agreement.
(3) For the purposes of proceedings under Part IV before a rights commissioner or the Labour Court in relation to a complaint that this section has not been complied with in relation to an employee to whom this subsection applies (“the first-mentioned employee”), the value or the minimum value of the compensation that a collective agreement for the time being specifies shall be provided to a comparable employee in respect of his or her being required to work on a Sunday shall be regarded as the value of compensation to be provided under this section to the first-mentioned employee that is reasonable having regard to all the circumstances:- Provided that if each of 2 or more collective agreements for thetimebeing specifies the value or the minimum value of the compensation to be provided to a comparable employee to whom the agreement relates in respect of his or her being required to work on a Sunday and the said values or minimum values are not the same whichever of the said values or minimum values is the less shall be regarded, for the purposes aforesaid, as the value of compensation to be provided under this section to the first-mentioned employee that is reasonable having regard to all the circumstances.
(4) Unless the fact of such a value being so specified has come to the notice of the rights commissioner or the Labour Court, as the case may be, it shall be for the person who alleges in proceedings referred to in subsection (3) that a value of compensation of the kind referred to in that subsection is specified by a collective agreement mentioned in that subsection to show that, in fact, such a value is so specified.
(5) In subsection (3) “comparable employee” means an employee who is employed to do, under similar circumstances, identical or similar work in the industry or sector of employment concerned to that which the first-mentioned employee in subsection (3) is employed to do.
(6) References in this section to a value or minimum value of compensation that is specified by a collective agreement shall be construed as including references to a value or minimum value of compensation that may be determined in accordance with a formula or procedures specified by the agreement (being a formula or procedures which, in the case of proceedings referred to in subsection (3) before a rights commissioner or the Labour Court, can be readily applied or followed by the rights commissioner or the Labour Court for the purpose of the proceedings).- (a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or
Findings of the CourtIt is common case that the Complainant worked an average of one Sunday in four /five. The Respondent relies of section 14(1) (b) of the Act. It states that the Complainants pay was otherwise increased by such an amount as is reasonable having regard to all the circumstances. In this regard it refers to the difference between the statutory minimum rate of pay and the actual rate of pay paid to the Complainant. It submits that the difference includes the premium for working on Sunday.
The Court does not accept this argument. The Respondent has not identified the proportion of that difference that constitutes the premium for working on Sunday. In essence its defence is that any payment over and above statutory minimum pay discharges its obligations under this section. However the Court, as a specialist tribunal, is aware that heavy goods vehicle drivers are normally paid a premium over and above the statutory minimum pay rate for the skills they possess and the responsibilities of the job. The Court is equally aware that drivers that work shift work receive premiums over and above the statutory minimum pay rate even where they are not required to work on Sunday. Accordingly the Court does not accept that any payment over and above the statutory minimum pay rate necessarily contains a premium for working on Sunday.
Accordingly the Court finds that the Respondent has not demonstrated that the rate of pay of the Complainant includes a premium for working on Sundays.
Determination
The Complaint is well founded. The Respondent has contravened the provisions of Section 14 of the Act. The Court requires the Respondent to comply with the Act and to pay the Complainant compensation in the amount of €750.
Signed on behalf of the Labour Court
Brendan Hayes
CR______________________
17th February, 2014.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.