DWT1496

FULL RECOMMENDATION

WTC/14/67

DETERMINATIONNO.DWT1496

(R-139943-WT-13)

SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997

PARTIES :

MARGUERITE & CIARAN FERRITER
(REPRESENTED BY J.V. GEARY SOLICITORS)

- AND -

DAMIEN O' TOOLE

DIVISION :

Chairman: Mr Hayes
Employer Member: Mr Murphy
Worker Member: Mr McCarthy

SUBJECT:
1. Appeal of Rights Commissioner's Decision r-139943-wt-13.

BACKGROUND:

2. The Employer appealed the Rights Commissioner's Decision to the Labour Court on 27th May, 2014. A Labour Court Hearing took place on 2nd October, 2014. The following is the Labour Court's Determination:

DETERMINATION:

This is an appeal by Marguerite and Ciaran Ferriter (the Respondents) against Rights Commissioner decision no r-139943 in which she upheld a complaint by Mr Damien O’Toole (the Complainant) that the Respondent infringed Sections 12 and 19 of the Organisation of Working Time Act 1997. The Rights Commissioner issued her decision on 29 March 2014. The Respondent appealed to this Court on 7 May 2014. The case came on for hearing on 2 October 2014.

Section 12
Section 12 of the Act states:

(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)

The Complainant gave evidence that he commenced was required to work without a break contrary to section 12(2) of the Act. He stated that when he worked in excess of six hours per day and was not, on some days, allowed a break of 30 minutes as required by the Act. He said that records of the hours he worked that were produced to the Court by the Respondent were never presented to him for signature and were not an accurate record of the hours he worked. He further stated that pay slips presented to the Court by the Respondent were not provided to him when in employment. He said that he was given only one pay slip by the Respondent and that it did not tally with the pay slip submitted to the Court for the relevant week.

The Respondent gave evidence that the Claimant took his break each day when all staff stopped work and ate together. He said that this happened in the morning time and before the lunchtime rush commenced. He said that he complied with section 12 of the Act in respect of the Complainant.

Findings of the Court
The Court finds that the evidence submitted by the Respondent is not credible. The Court finds that the pay slips it submitted did not tally with the single pay slip given to the Complainant. The Respondent failed to provide any explanation for this inconsistency. He simply stated that his accountant prepared them. No evidence was given by the company’s accountant.

The Court further finds that the OWT1 forms submitted by the Respondent were not signed by the Complainant. The Court prefers the Complainant’s evidence that they were never presented to him for signature. Indeed the Court found the Respondent’s evidence wholly unsatisfactory, contradictory and inconsistent.

On the basis of the evidence presented the Court finds that the Complaint is well founded.

Determination
The Court affirms the decision of the Rights Commissioner and rejects the appeal.

Section 19
Section 19 of the Act states

(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):
Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.

The Complainant stated that he was not granted any holidays in respect of the time he worked with the Respondent. He further states that he was not paid for either of the two public holidays that fell during his employment with the Respondent.

The Respondent acknowledges that the Respondent was not paid for one of the public holidays that was due to him and undertook to make good the monies due to the Complainant in that regard. However he stated that the Complainant was otherwise paid all his leave entitlements under the Act.

Findings of the Court
The Court finds that the Respondent is required by S.I. No. 473/2001 - Organisation of Working Time (Records) (Prescribed Form and Exemptions) Regulations, 2001 Section 25 of the Act to maintain records of all leave granted and paid to the Complainant. Section 2(3) states:

The records required to be kept under section 25(1) shall contain the following particulars and documents —

(a) the name and address of each employee concerned, the number known as the Revenue and Social Insurance number that has been assigned to him or her and a brief statement (which may be by reference to any form of job description or classification used by the employer concerned) of his or her duties as an employee,

(b) a copy, as appropriate, of the statement provided to each employee concerned in accordance with the provisions of theTerms of Employment (Information) Act, 1994(No. 5 of 1994), or any order or regulation made under that Act, that relates to him or her,

(c) (i) the days and total hours worked in each week by each employee concerned,
(ii) any days and hours of leave in each week granted by way of annual leave or in respect of a public holiday to each employee concerned and the payment made to each employee in respect of that leave,
(iii) any additional day's pay referred to in section 21(1)(d) provided in each week to each employee concerned, and

(d) a copy of a written record of a notification issued to an employee concerned in relation to any of the matters provided for in section 17 (including a copy of a notice posted in the manner referred to in subsection 5 of that section), and shall generally be in such form as will enable an inspector to understand the particulars contained in them without difficulty.

In this case the Respondent failed to keep the records required by S.I. 473/2001. Accordingly the burden of proving compliance with the Act lies with the Respondent.

The Court finds that the documents submitted by the Respondent are not credible. Furthermore the Court finds that that Respondent’s evidence was not consistent or credible. The Court prefers the evidence of the Complainant on the matters before it.

Determination
The Court finds that the Complaint is well founded. The appeal is rejected. The decision of the Rights Commissioner is affirmed.

The Court so determines.

Signed on behalf of the Labour Court

Brendan Hayes
29th October, 2014______________________
JMcCDeputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.