FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : PAUL FITZPATRICK T/A THE MORGAN HOTEL - AND - JARMILA RIECKA (REPRESENTED BY EM O'HANRAHAN SOLICITORS) DIVISION : Chairman: Mr Duffy Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner's Decision r-142811-wt-14/MMG.
BACKGROUND:
2. The Worker appealed the Rights Commissioner's Decision to the Labour Court on 23rd October, 2014. A Labour Court Hearing took place on 6th March, 2015. The following is the Labour Court's Determination:
DETERMINATION:
This is an appeal by Jarmila Reicka (the Claimant) against the decision of a Rights Commissioner in her complaints against her former employer, Paul Fitzpatrick t/a The Morgan Hotel (the Respondent), under the Organisation of Working Time Act 1997.
The Complainant are as follows: -
- •That the Respondent contravened s.14(1) of the Act in not providing the Claimant with compensation for being required to work on Sundays•The Respondent contravened s.12 of the Act in not affording the Claimant adequate breaks•The Respondent contravened s.15 of the Act in requiring the Complainant to work in excess of 48 Hours per week.
Position of the Parties
The Claimant
The Claimant gave sworn evidence in which she told the Court that she typically worked from 7am to 8pm five days per week, including every second Sunday. She also told the Court in evidence that from the month of December 2013 until her employment ended the amount of work that she was required to perform was such that she was unable to take breaks.
The Claimant accepted that she sent emails to the Respondent each week in which she recorded her working hours as 39 per week. She explained this by saying that she was paid a fixed salary of €32,000 per annum regardless of the number of hours worked and that she had been told that she should record her contractual weekly hours which were 39 per week.
She also accepted that she had not raised any issue with the Respondent concerning the absence of opportunities to take breaks nor had she raised any issue in relation to her working hours. She said that she was fearful that if she did so she would be dismissed.
The Respondent
The Respondent accepted that he did not maintain records of working time in accordance with s.25 of the Act. The Respondent did not adduce any evidence on the matters dealt with in the Claimant’s testimony. The spokesperson for the Respondent did, however, deny that the Claimant worked the hours that she claimed or that she did not obtain breaks.
On the question of Sunday premium, the Respondent told the Court that the requirement to work every second Sunday was an inherent feature of the post that the Claimant held and that requirement was taken into account in determining her salary. A copy of the Claimant’s contract of employment was put in evidence which expressly provided that the salary took account of the obligation to work on Sundays.
Conclusions of the Court
Section 25 of the Act provides: -
- 25.—(1) An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this Act are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making.
(2) The Minister may by regulations exempt from the application of subsection (1) any specified class or classes of employer and regulations under this subsection may provide that any such exemption shall not have effect save to the extent that specified conditions are complied with.
(3) An employer who, without reasonable cause, fails to comply with subsection (1) shall be guilty of an offence.
(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 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 Respondent did not maintain working time records in the prescribed form. Consequently, in accordance with subsection (4) of s.25, the Respondent bears the burden of proving compliance with both sections. The Respondent did not adduce any evidence on which the Court could discount the sworn evidence of the Claimant. Accordingly, the Court finds that the complaints in relation to sections 12 and 15 of the Act are well founded.
Sunday Premium – Section 14
Section 14(1) of the Act provides: -
- 14.—(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
On its plain and ordinary meaning, paragraphs (a) to (d) of this subsection take effect only where the fact of the employee being required to work on Sunday is not otherwise taken into account in determining his or her pay. The Court has reviewed the Claimant’s written contract of employment and it is satisfied that the fact of her having to work on Sundays was taken into account in determining her salary. It follows that the Respondent did not contravene s. 14 of the Act in relation to the Claimant.
Outcome
The Court finds that the Respondent did contravene sections 12 and 15 of the Act in relation to the Complainant but that he did not contravene S.14 of the Act.
In relation to the contraventions of sections 12 and 15 of the Act, the Court notes that the Claimant was employed in a management / supervisory capacity and that her duties included ensuring compliance, inter alia, with the provisions of the Act in relation to the taking of breaks and in respect of working hours. The terms of her employment stipulated that breaks should be taken and also limited her attendance liability to 39 hours per week. Having regard, in particular, to the position that she held, the Court believes that the Claimant had a duty to inform the Respondent of the hours that she actually worked and of her difficulty in taking breaks. The Court is satisfied, as a matter of probability, that had she so informed the Respondent steps would have been taken to address the difficulties that she encountered. While this does not provide the Respondent with a full defence to the within claims it does amount to a material contribution on the part of the Claimant to what occurred. This must be reflected in the quantum of compensation to which the Claimant is entitled.
Taking account of these considerations, the Court measures the amount of compensation that is fair and equitable in all the circumstances of this case at €1,000, being €500 in respect of the contraventions of s.12 and a further €500 in respect of the contraventions of S.15.
Disposal
The decision of the Rights Commissioner is set aside and substituted with this Determination.
Signed on behalf of the Labour Court
Kevin Duffy
19th March, 2015______________________
JMcCChairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.