DWT1529

This is an appeal by Krzysztof Karski (hereafter the Claimant) against the decision of a Rights Commissioner in his claim under the Organisation of Working Time Act 1997 (hereafter the Act) against his former employers A.S Cars Limited and D.S Cars Limited (hereafter the Respondents).

The Claimant claims that the Respondents contravened sections 12 and 15 of the Act over the currency of his employment from 1^stMarch 2010 until 11^thFebruary 2014. However, for the purpose of the within claim, section 27(4) of the Act limits the period in respect of which redress can be awarded to the six months prior to the presentation of the complaint to the Rights Commissioner

Non-appearance of the Respondent

The Respondents failed to appear at the hearing of the appeal. The Court is satisfied that the Respondents were informed of the date time and place of the sitting of the Court the appeal would be determined. In these circumstances the Court proceeded with the hearing in the absence of the Respondent.

Identity of the Employer

The claim as presented was against A.S Cars limited and / or D.S Cars Limited. The Claimant gave sworn evidence in which he told the Court that he worked in a business involved in the sale of used cars. He received two cheques in respect of his wages each week (or occasionally at longer intervals). One cheque was drawn on the account of A.S Cars Limited and the other was drawn on the account of D.S Cars Limited. The cheques were for equal amounts. According to the Claimant he was unaware that the business was being operated by two corporate entities when he commenced his employment. On his dismissal the Claimant received two P45s; one from A.S Cars and one from D.S Cars. He later came to understand that a Mr Alan Sexton was a director of A.S Cars Limited and a Mr David Sexton was a director of D.S Cars Limited. The business operated out of single premises. Both Alan Sexton and David Sexton worked from that premises and both dealt with customers without distinction. They jointly managed the enterprise. It was the Claimant’s evidence that he worked at valeting cars in preparation for sale. He said that there was no discernible distinction between parts of the business and it operated as a single commercial entity.

On the uncontested evidence of the Claimant it seems clear to the Court that A.S. Cars Limited and D.S. Cars Limited operated the business jointly. Section 1 of the Partnership Act 1890 provides that a Partnership is the relationship that subsists between persons carrying on a business in common with a view to profit. In these circumstances the Court accepts the submissions of Counsel for the Claimant that the business in which the Claimant was employed was a firm comprising A.S Cars limited and D.S Cars Limited in partnership. Accordingly, at all material times A.S Cars Limited and D.S Cars Limited were jointly and severally liable to the Claimant as his employer.

The Claimant Case

The Claimant told the Court in evidence that throughout the period of his employment he worked from 8.30 am to 6.pm Monday to Friday and from 9.30.am to 4.pm on Saturdays. He received a 30 minute lunch break each day. He was paid a gross weekly wage of €367.34 per week.

Conclusion of the Court
Section 12 of the Act provides: -

12.—(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).

  (3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour).

  (4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2).

• 
  15.—(1) An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period ”) that does not exceed—
  • (a) 4 months, or
    • (b) 6 months—
      • 
        (i) in the case of an employee employed in an activity referred to in paragraph 2, point 2.1. of Article 17 of the Council Directive, or

        (ii) where due to any matter referred to insection 5, it would not be practicable (if a reference period not exceeding 4 months were to apply in relation to the employee) for the employer to comply with this subsection,

        or

      
      (c) such length of time as, in the case of an employee employed in an activity mentioned in subsection (5), is specified in a collective agreement referred to in that subsection.

Outcome
The Court is satisfied that the Respondent did not contravene section 12 of the Act in relation to the Claimant.

The uncontested evidence tendered by the Claimant was to the effect that he worked 51 hours per week in the cognisable period. That amounted to a clear contravention of section 15 of the Act. Accordingly, his complaint in so far as it relates to that section is well founded.

It is well settled that the Act, and the European Directive from which it is derived, regulates working time as a health and safety imperative. In this case it is clear that the Claimant was consistently required to work in excessive of the maximum working hours permitted. While he suffered no pecuniary loss in consequence of that contravention the Court is obliged to mark the seriousness of the Respondent’s disregard of the Claimant’s rights under that Act in an award of compensation.

The Court measures the amount of compensation that is just and equitable in the circumstances of this case at €5,000.

Determination

The Court awards the Claimant compensation in the amount of €5,000 in respect of the contravention of section 15 of the Act that occurred. The award is against A.S Cars Limited and D.S Cars Limited jointly and severally as a partnership.

The decision of the Rights Commissioner is set aside and substituted with the terms of this Determination.

Signed on behalf of the Labour Court



Kevin Duffy
13th April 2015______________________
SCChairman



NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.