DWT15115

This is an appeal by Sereta Doran (hereafter the Claimant) and a cross-appeal by Nurendale Limited t/a Panda Waste (hereafter the Respondent) against a decision of a Rights Commissioner in the Claimant’s claims under the Organisation of Working Time Act 1997.

The claims before the Rights Commissioner alleged contraventions of sections 12 (rest and intervals at work), 17, notification of starting and finishing times, section 20, annual leave and section 22 public holidays. The claims under sections 20 and 22 related to a claimed underpayment in respect to the holidays in issue.

The Claimant worked in a call centre operated by the Respondent. Her employment commenced on or about 19^thMay 2010 and terminated on or about 4^thNovember 2014.

The claim was presented to the Rights Commissioner on 22^ndJanuary 2015. Consequently the cognisable period for the purposes of the claim is from 23^rdJune 2014 until 4^thNovember 2014, the date on which her employment came to an end.

The Court heard evidence from the Claimant and from Ms Deirdre Driver, who was the Claimant manager at the material time. The facts as found by the Court are based on its evaluation of the evidence or as admitted by the parties.

Conclusions of the Court

Section 12 – Breaks and Intervals at Work
At all material times the Claimant commenced work at 8am each morning and she finished work at 5.30pm, although there may have been occasional slight variations in her finishing time. It is admitted that in the cognisable period the Claimant did not receive formal breaks or intervals at work. The Respondent claims that an agreement was concluded between the Claimant and Ms Driver whereby she would work through her breaks. This, according to the Respondent, resulted in the Claimant’s working hours going from 40 per week to 47.5 hours per week, for which she was paid. In her evidence the Claimant denied that any such agreement was concluded. She contends that the work in the call centre was so organised as to make it impossible to take a proper break. The Claimant accepted that she availed of up to three smoke breaks in the course of the day and that this was by agreement with the Respondent.

It is unnecessary for the Court to resolve this conflict of evidence. Even if an agreement was entered into between the parties (and the Court makes no such finding) it was rendered void by operation of s.37 of the Act. While the Respondent relied upon this the existence of such an agreement in mitigation of the contraventions the Court cannot accept that submission. It is well settled that an employer is obliged to ensure that breaks are actually taken (Case C-484/04, Commission v United Kingdom [2006] ECR 1-7471). That obligation admits of no exceptions other than those expressly provided by the statute

The decision of the Rights Commissioner in finding a contravention of this section is affirmed. The Court measures the level of compensation that is fair and equitable at €600.

Section 17 – Notification of starting and Finishing Times
In her evidence the Claimant accepted that she had regular starting and finishing times which were known to her. Consequently the Court must hold that s17 of the Act was not contravened.

The decision of the Rights Commissioner to uphold this claim and award the Claimant compensation in the amount of €400 is set aside.

Sections 20 and 22 -Annual Leave and Public Holidays
Both of these claims can be considered together as they each related to the number of hours on which the Claimant’s normal daily rate of pay was calculated.

It is admitted that for holiday purposes the Claimant was paid by reference to an eight hour day. Her actual working day was 9.5 hours. Hence, the Claimant was under paid in respect to annual leave and public holidays falling within the cognisable period. The Rights Commissioner measured the Claimant’s financial loss in respect of annual leave at €142.10 and he awarded a further sum of €130 in respect of general compensation for the contravention that occurred. In respect to public holidays the Rights Commissioner measured the financial loss at €19.60, to which he added a further sum in the amount of €15 by way of general compensation.

In her appeal the Claimant did not take issue with the findings of the Rights Commissioner concerning economic loss. Her appeal was directed at the level of general compensation awarded.

The Court is satisfied that the award of general compensation awarded in respect of the underpayment of annual leave is unduly low. The Court believes that the appropriate level of compensation that should be awarded, in addition to economic loss, for the contravention of s.20 of the Act should be increased to €500 Consequently the total award in respect to the breach of s.20 is measured at €642.10.

The Court affirms the totality of the Rights Commissioner’s award in respect of the contravention of s.22 of the Act.

Outcome
The total award to the Claimant is, therefore, €1,276.70

The Rights Commissioner decision is varied in terms of this Determination

Signed on behalf of the Labour Court



Kevin Duffy
CO'R______________________
2nd November, 2015Chairman



NOTE

Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary.