FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : LAUREL ENTERPRISES LIMITED TRADING AS CENTRA (REPRESENTED BY ROCHFORD GIBBONS, SOLICITORS) - AND - CELINA JAKUBIAK (REPRESENTED BY MR BLAZEJ NOWAK) DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Ms Tanham |
1. Appeal against Rights Commissioner's Decisions r-127937-wt-12/JC, r-127942-wt-12/JC & r-127944-wt-12/JC.
BACKGROUND:
2. The Employee appealed the Rights Commissioner's Decisions to the Labour Court on 17th July, 2013. A Labour Court Hearing took place on 13th September, 2013, and was adjourned to 31st January, 2014, to allow for further submissions from both sides. The following is the Labour Court's Determination:-
DETERMINATION:
This is an appeal under the Organisation of Working Time Act 1997 (the Act) by Ms Celina Jakubiak (the complainant) against the Rights Commissioner Decision number r-127942-wt-12/JC & r-127944-wt-12/JC and r-127922-wt-12/JC. The complaint was submitted to the Rights Commissioner on 15th November 2012 and covers the period 16th May 2012 until her employment ceased.
Background
The Complainant worked for Laurel Enterprises Limited trading as Centra (the Respondent) from 1st October 2011 as a Deli Assistant. On 15th November 2012 she submitted a complaint to the Rights Commissioner in which she states that the Respondent infringed Sections 12, 14, 18 and 19, 20 & 21 of the Act. The Rights Commissioner decided that the complaints under Sections 12 and 19, 20 and 21 were well-founded and awarded the Complainant compensation. She decided that the complaints under Sections 14 and 18 were not well-founded. The Complainant appealed against the Decisions under Section 12 of the Act as it relates to Sunday working, Section 14 of the Act and Section 18 of the Act.
The case came on for hearing on 13th September 2013. It was adjourned to allow for further submissions by both sides. The case returned to the Court on 31st January 2013.
Position of the Parties.
Section 12
Mr Nowak, on behalf of the Complainant, submits that the Complainant worked a number of Sundays in the relevant period and was not allowed breaks while at work. He submits that on weekdays there were three staff on the Deli counter. On Sunday there were two. He states that these covered different shifts that only partially overlapped. As a result it was not possible to take breaks on those days.
Respondent's Position
The Respondent states that the Complainant did not work on Sunday in the relevant period. It submits mandatory signed hygiene records for each day of the relevant period. It states that staff are required to sign the records on each day on which they work on the Deli. It submits that an examination of the records discloses that the Claimant did not sign the records on any Sunday in the relevant period.
Findings of the Court.
The Court finds that the Complainant did not work on Sundays in the relevant period and, accordingly, no infringement of Section 12 of the Act occurred in respect of the Claimant over that time.
Determination
The Complaint is not well-founded.
Section 14
Sunday Work
On the basis of the finding above, the Court finds that the Complainant did not work on Sundays in the relevant period. Consequently, no cause of action arises in respect of a breach of Section 14 of the Act in the relevant period.
Determination
The Complaint is not well-founded.
Section 18 Zero Hours Contract
The Complainant states that she was employed on a contract for a certain number of hours or as and when required by her employer to be available and/or otherwise as required by her Employer. She submits that she was given no work in August 2012 but was required to make herself available for work. She seeks compensation as provided for in Section 18 of the Act.
The Respondent submits that the Complainant was laid-off for the month of August as there was no work available for her at that time. It submits that she was not required to make herself available for work at any time that month and that she signed for Job-Seekers' Allowance at that time. It states that it supplied her with a letter to that effect for that purpose at that time and submitted a copy of the letter to the Court.
Findings
The Court finds that the Complainant was not employed on a Section 18-type contract and was laid-off for the month of August 2012.
Determination
The Complaint is not well-founded.
Signed on behalf of the Labour Court
Brendan Hayes
7th March, 2014______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.