DWT1540

Complaints

Section 23(2)

The Complaint under Section 23(2) of the Act was not pursued.

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)

Findings of the Court

The Court notes that, contrary to Section 25 of the Act, the Respondent did not maintain records of the Complainant’s breaks. Accordingly the onus of proving compliance with the Act lies with the Respondent.

The Respondent did submit records of the Complainants rosters. Those records disclose that the Complainant was on occasions required to work alone for periods in excess of 4.5 hours during which time he was obliged to be constantly available to deal with customer and other enquiries. On those days he was not in a position to avail of an uninterrupted break from work.

Based on the evidence before it the Court finds that the Respondent has not discharged the burden of proving compliance with the Act. The Court further finds that the records submitted by the Respondent confirm the position advanced by the Complainant that he was on occasions required to work in excess of 4.5 hours and thereby deprived of his entitlement to breaks at work.

The Court notes that the Rights Commissioner came to a similar conclusion and awarded the Complainant compensation in the sum of €800. Both parties appealed against the award. The Complainant stated that it was not sufficient in light of the extent of the infringements involved. The Respondent stated that it was excessive in light of the facility the Complainant had to determine his own breaks.

The Court has considered the frequency with which the complainant was required to work alone and the health and safety consequences of depriving works of access to breaks at work.

In those circumstances the Court finds that the Rights Commissioner’s award should be increased to €1000 in respect of the extent of the infringement of Section 12 of the Act that has occurred in this case.

Determination

The Court upholds the Complainant’s appeal. The Court orders the Respondent to pay the Complainant compensation in the sum of €1,000.

The Decision of the Rights Commissioner is amended accordingly.

The Court so determines.

Section 14

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 paid time off 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.

The Respondent argues that Complainant’s contract of employment states

“There is no enhanced rate of pay for overtime. And any days of the week is considered the same”.

It argues that this provision amounts to a requirement to work on Sunday for a flat rate of pay.

Findings of the Court

The Court finds that the Complainant was required to work on Sunday. It further notes that the Complainant was paid the minimum wage when he commenced employment though this was subsequently increased when he was promoted to the position of “supervisor”. However the Respondent did not alter the contract of employment under which the Complainant worked. Furthermore the Respondent was not in a position to identify the extent to which the requirement to work on Sunday was otherwise taken account of in the determination of the Complainant’s pay.

Accordingly the Court finds that the Complainant was required to work on Sunday and that the requirement was not otherwise taken into account in the determination of his pay.

The Court notes that the documents submitted by the parties disclose that the Complainant worked on nine Sundays in the relevant period. The Rights Commissioner awarded the Complainant compensation in the sum of €413.44 for the infringements of Section 14 of the Act.

The Complainant states that this amount is not consistent with the extent of the infringement in this case and asks the Court to increase that figure. The Respondent argues that the award is adequate and should not be increased.

The Court finds that the frequency with which the Complainant was required to work on Sunday taken together with the length of his shift on that day (which ranged from 8 to 11 hours in the relevant period) warrants an award of compensation greater than that decided upon by the Rights Commissioner.

The Court determines that the appropriate compensation in this case is €1,000.

Determination

The Court upholds the Complainant’s appeal. The Court awards the Complainant compensation in the sum of €1,000. The Decision of the Rights Commissioner is amended accordingly. The Court so determines.

Section 17

Section 17 of the Act states

• (1) If neither the contract of employment of the employee concerned nor any employment regulation order, registered employment agreement or collective agreement that has effect in relation to the employee specifies the normal or regular starting and finishing times of work of an employee, the employee's employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in each week that he or she proposes to require the employee to work, of the times at which the employee will normally be required to start and finish work on each day, or, as the case may be, the day or days concerned, of that week.

  (2) If the hours for which an employee is required to work for his or her employer in a week include such hours as the employer may from time to time decide (in this subsection referred to as “additional hours”), the employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in that week on which he or she proposes to require the employee to work all or, as the case may be, any of the additional hours, of the times at which the employee will be required to start and finish working the additional hours on each day, or, as the case may be, the day or days concerned, of that week.

  (3) If during the period of 24 hours before the first-mentioned or, as the case may be, the second-mentioned day in subsection (1) or (2) , the employee has not been required to do work for the employer, the time at which the employee shall be notified of the matters referred to in subsection (1) or (2), as the case may be, shall be not later than before the last period of 24 hours, preceding the said first or second-mentioned day, in which he or she has been required to do work for the employer.

  (4) A notification to an employee, in accordance with this section, of the matters referred to in subsection (1) or (2) , as the case may be, shall not prejudice the right of the employer concerned, subject to the provisions of this Act, to require the employee to start or finish work or, as the case may be, to work the additional hours referred to in subsection (2) at times other than those specified in the notification if circumstances, which could not reasonably have been foreseen, arise that justify the employer in requiring the employee to start or finish work or, as the case may be, to work the said additional hours at those times.

  (5) It shall be a sufficient notification to an employee of the matters referred to in subsection (1) or (2) for the employer concerned to post a notice of the matters in a conspicuous position in the place of the employee's employment.

The Respondent submits that the Complainant was notified in advance of his weekly roster. It argued that the roster did not vary from week to week and that any changes that were made, which were rare, could not be reasonably foreseen and accordingly come within the scope of Section 17(4) of the Act.

Statutory Instrument No 473/2001 in relevant part states

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

• (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),

• (4) Without prejudice to subsection (3) , where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act [or the Activities of Doctors in Training Regulations] in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.

The evidence submitted by the Respondent amounted to no more than assertions that it complied with Section 17 of the Act and that any departures from its obligations were necessitated by the exigencies of the business.

It is well settled law that mere assertion cannot be afforded the status of evidence. Accordingly the Court finds that the Respondent has not discharged the burden of proving compliance with Section 17 of the Act.

Determination

The Court upholds the appeal of the Decision of the Rights Commissioner. The Court orders the Respondent to pay the Complainant compensation in the sum of €500 for the breaches of the Act in this case.

The Decision of the Rights Commissioner is set aside.

The Court so determines.

Section 20(2) of the Act states

(2) The pay in respect of an employee's annual leave shall—

(a) be paid to the employee in advance of his or her taking the leave,

• (b) be at the normal weekly rate or, as the case may be, at a rate which is proportionate to the normal weekly rate, and

  (c) in a case in which board or lodging or, as the case may be, both board and lodging constitute part of the employee's remuneration, include compensation, calculated at the prescribed rate, for any such board or lodging as will not be received by the employee whilst on annual leave.

The Respondent argues that the Claimant is entitled to paid annual leave that he was not afforded. He argues that he is entitled to payment of the monies that were due to him at the termination of his employment.

Findings

The Respondent acknowledges that it did not comply with the provisions of the Act. However it argues that the claimant was at no loss and that the monies it paid to him should be offset against any award made by the Court.

The Complainant argues that he is entitled to paid annual leave and that he was deprived of that entitlement.

The Court notes that the Rights Commissioner found for the Complainant and awarded him €1,720 compensation for the infringement of his rights under the Act.

Having considered all of the evidence on this matter the Court finds that the Complainant was deprived of his statutory entitlements. It further finds that the taking of annual leave is an important matter affecting safety and health of workers. Workers must be in a financial position to take annual leave and not be offered any pressure or inducement, financial or otherwise, to forego the leave. In this case the manner in which the Complainant was paid would require him to set aside sufficient monies each week to finance his annual leave. If he failed to do so he would not be in a position to finance himself during his annual leave. That would act as a pressure or inducement to forego the leave and put his safety and health at risk and thereby undermine the object and intent of the Act.

In those circumstances the Court finds that the Rights Commissioner’s Decision does not is not sufficient in this case. The Court accordingly instructs the Respondent to pay the Complainant compensation in the sum of €2,500 for the infringement of his entitlements under the Act which sum includes all holiday payments due to him.

Determination

The Court upholds the Complainant’s appeal. The Court orders the Respondent to pay the Complainant compensation in the sum of €2,500. The Decision of the Rights Commissioner is varied accordingly. The Court so decides.

Signed on behalf of the Labour Court



Brendan Hayes
CR______________________
30th April, 2015.Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.