FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : ERAC IRELAND LIMITED (REPRESENTED BY MASON HAYES & CURRAN) - AND - EDDIE MURPHY (REPRESENTED BY MANAGEMENT CONSULTANCY SERVICES) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr McCarthy |
1. An appeal against a Rights Commissioner's Decision no: r-147095-wt-14/JOC.
BACKGROUND:
2. The Worker appealed the Rights Commissioner's Decision to the Labour Court on the 6th May 2015 in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 10th September 2015. The following is the Determination of the Court.
DETERMINATION:
This is an appeal by ERAC Ireland (Enterprise Rent-a-Car) against a Decision of a Rights Commissioner in a claim made by Mr Eddie Murphy under the Organisation of Working Time Act, 1997 (the Act).
The Complainant submitted complaints alleging breaches by the Respondent under Sections 12, 13, 14, 15 and 19 of the Act.
The parties are referred to in this Determination as they were at first instance. Hence, Mr Eddie Murphy is referred to as “the Complainant” and ERAC Ireland is referred to as “the Respondent”.
In his Decision the Rights Commissioner found that the Complainant’s complaint alleging a breach of Section 15 of the Act was well-founded and did not find in favour of the remaining claims. The Respondent appealed against that Decision. The Complainant did not appeal the Decisions under Sections 12, 13, 14 and 19 of the Act.
Background
The Complainant was employed by the Respondent from 9thJuly 2007 until 20thJuly 2014. He was promoted on a number of occasions and was appointed as a Branch Manager initially based in Tralee and then in Cork City which also managed the Cork Airport Branch. The claim was referred under the Act to the Rights Commissioner on 17thFebruary 2014. Hence, the cognisable period for the purposes of the within claims is from 18thAugust 2013 until 17thFebruary 2014.
Summary of the Complainant’s Case
Mr. Ken Stafford, Management Consultancy Services, on behalf of the Complainant, stated that the Respondent was in breach of Section 15 of the Act and that such breaches were a structured part of the employment arrangement whereby the Complainant’s contract was in violation of the provisions of the Act,viz:-
Clause 8.6
- “The normal hours of work of the Company are 48 hours per week and the normal hours of business are 8.00am to 18.00pm Monday to Friday and 9.00am to 12.00 pm on Saturday. In addition to the normal workweek, the Employee may be required to work weekends, Public or Bank holidays and/or any other
additional periods that are required for the proper performance of duties”
Clause 8.7
- “As manager with sole responsibility for his or her branch or department and as leader of the management team, the Employee will be expected to work appropriate hours in order to fully carry out his or her responsibilities. Due to the nature of his
or her position, this may include evening or weekend when necessary. He/she will not be entitled to any additional salary in respect of any such additional hours of work. The Employee hereby acknowledge by accepting this contract that, as a member of the management team, Part 11 of the Organisation of Working Time Act 1997, shall not apply to his or her employment under this contract”
Mr Stafford submitted that the contract sets out to violate the Act in stipulating that the normal working hours are 48 per week and that additional hours may be required beyond that. He said that in addition to his normal hours of work, the Complainant was required to be on-call especially at weekends to respond to late night flight arrivals. He said that such contractual obligations and expectations were in breach of the Act and submitted details to the Court to show that the Complainant was required to work such hours, exceeding the provisions of the Act.
Mr Stafford disputed the belief that the Complainant’s duties create a situation where he might be exempted from the provisions of Part II of the Act, as contended for by the Respondent. He referred to an incident which occurred in July 2012 when the Complainant was disciplined for the following:-
- “failure as a Branch Manager of Tralee to maintain and/or report your
personal absenteeism and/or tardiness in a timely and ethical
manner"
Summary of the Respondent’s Position
Mr Ger Connolly, Solicitor, Mason Hayes & Curran, Solicitors, on behalf of the Respondent, referred to Clause 8.7 of the contract of employment (cited above) which stated that as a member of the management team he accepted a contract of employment on 1stOctober 2011 which stipulated that Part II of the Act did not apply to his employment. He said that when the Complainant accepted the position as Branch Manager he accepted that Part II of the Act did not apply to him. He said that the Complainant never raised the issue of his working hours until he was the subject of disciplinary action.
He referred to the Leman Solicitors Report which recorded that the Respondent had stated that there was no need for the Complainant to be working excessive hours on a continuous basis. It found that the Complainant was responsible for scheduling his own working time and that of his team. It also found that the Complainant was provided with advice from Management on how he could best manage both branches to assist him with the workload and the operational challenges he faced.
Mr Connolly stated that as Manager of the Cork Home City Branch the Complainant had complete autonomy in relation to the running of this Branch, his bonus was linked to the success of the Branch and he was responsible for the working hours of all staff including his own hours. He denied that the Respondent requested the Complainant to stop recording his time on the Time Recording System and he said that as Manager he was not required to do so, as was the situation while he was Manager in Tralee.
Mr Connolly submitted that as the Complainant had not given details of the hours he worked and he had merely set out the opening times of the Branch as opposed to the actual hours he worked. He said that the Complainant could not adduce any evidence that he worked in excess of 48 hours per week averaged over a 4 month period. Therefore Mr Connolly submitted that the Complainant had failed to advance a stateable case. In support of this contention, he cited the case ofISS Ireland v Vyara Gfenecheva, DWT1157 where the Court held that
- “the evidential burdenis on the Claimant to adduce such evidence as is available to support a stateable case of non-compliance with a relevant provision of the Act. …….. as a matter of basic fairness, the Claimant should be required to do so with sufficient particularity as to allow the Respondent to know, in broad terms, the nature of the complaint and the case that they are expected to meet.
Court’s Findings - Preliminary Issue
The Respondent contended that Section 15 of the Act was inapplicable to the Complainant’s employment by virtue of Section 3(2)(c) of the Act which provides that Part II of the Act (which includes Section 15) shall not apply to: -
- (c) a person the duration of whose working time (saving any minimum period of such time that is stipulated by the employer) is determined by himself or herself, whether or not provision for the making of such determination by that person is made by his or her contract of employment.
The Act transposed in Irish law the provisions of what is now Directive 2003/88/EC concerning certain aspects of the organisation of working time. In interpreting and applying a provision of domestic law the Court must do so in light of the wording and purpose of a Directive so as to produce the result envisaged by the Directive (Marleasing S.A. v La Commercial Internacional de Malimentacion S.A.[1990] ECR 4135).
Section 3 of the Act, and Article 17 of the Directive, allow for a derogation from an important duty imposed on employers for reasons of protecting the health and safety of workers. Consequently it must be construed narrowly. The Court notes that the Complainant’s contract of employment required him to work in excess of the standard opening hours of the business and also to work evenings, Public or Bank holidays and/or any other additional periods that were required for the proper performance of his duties. Furthermore, he was subjected to disciplinary action over his non-attendance on specific dates. In these circumstances the Court cannot accept that such an obligation imposed on the Complainant can come within the intent and meaning of Section 3(2)(c) of the Act so as to relieve the Respondent of liability to comply with the relevant provisions of the Act.
The Court finds that the Complainant was employed to work hours set by the Respondent and as determined by the business needs and consequently he was not in control of his own hours. Therefore, the Court determines that the Complainant comes within the scope of the Act.
The Court notes that paragraph 8.7 of the contract, recited above, reserves to the Respondent a right to require the Complainant to work in excess of the hours referred to in paragraph 8.6 namely, 48 per week. That provision, in so far as it purported to allow the Respondent to require the Complainant to work beyond the number of hours permitted by Section 15 of the Act, was void and of no effect. That is clear from Section 37 of the Act which provides: -
- 37.—Save as expressly provided otherwise in this Act, a provision in an agreement (whether a contract of employment or not and whether made before or after the commencement of the provision concerned of this Act) shall be void in so far as it purports to exclude or limit the application of, or is inconsistent with, any provision of this Act.
Burden of Proof
Section 25 of the Act provides for the keeping of records, it states: -
- 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.
InJakonis Antanas v Nolan Transport[2011] 22 E.L.R. 311 the Court held in relation to the application of that subsection as follows: -
- The burden on a respondent of proving compliance with the Act arises in proceedings in which a complaint of non-compliance is made. It is clear from s.27(2) of the Act that the jurisdiction of the Rights Commissioner is invoked by an aggrieved worker, or his or her trade union, by presenting a complaint to a Rights Commissioner that his or her employer has contravened a relevant provision of the Act in relation to him or her. The subsection goes on to provide that where a complaint is made the Rights Commissioner shall give the parties an opportunity to be heard and to present to the commissioner any evidence relevant to the complaint.
This suggests that the evidential burden is on the claimant to adduce such evidence as is available to support a stateable case of non-compliance with a relevant provision of the Act. It seems to the Court that, as a matter of basic fairness, the claimant should be required to do so with sufficient particularity as to allow the respondent to know, in broad terms, the nature of the complaint and the case which they are expected to meet. As was pointed out by Lord Devlin inBratty v Attorney General for Northern Ireland[1963] A.C. 386 an evidential burden is satisfied where the evidence adduced is sufficient to “suggest a reasonable possibility”
The respondent should then be called upon to put the records required by s.25(1) of the Act in evidence showing compliance with the relevant provision in issue. If records in the prescribed form are produced the legal burden will be on the claimant to satisfy the Rights Commissioner, or the Court on appeal, that the records ought not to be accepted as evidence of compliance. Thus the claimant will bear both the evidential and the legal burden of proving, on the balance of probabilities, that his or her rights under the Act were contravened in the manner alleged. If the claimant fails to discharge that burden he or she cannot succeed.
Where records in the prescribed form are not produced, and the claimant has satisfied the evidential burden which he or she bears, it will be for the respondent to establish on credible evidence that the relevant provision was complied with in relation to the claimant. The respondent will thus be required to carry the legal burden of proving, on the balance of probabilities, that the Act was not contravened in the manner alleged by the claimant. If the respondent fails to discharge that burden the claimant will succeed.
Conclusion of the Court
The Court is satisfied based on the terms of the Complainant’s contract of employment coupled with the two examples where the Complainant clocked in and the findings of the Leman Solicitors Report which makes reference to the Complainant’s “excessive working hours” that the Complainant has met the evidential burden of proof as the facts presented are sufficient tosuggest a reasonable possibilitythat Section 15 of the Act was contravened. The Court finds that the Respondent has failed to meet the legal burden of proving, on the balance of probabilities, that the Act was not contravened in the manner alleged by the Complainant.
Determination
The Court finds the Complaint’s complaint is well-founded and upholds the Rights Commissioner's Decision. The Respondent must pay the Complainant the sum of €8,000.00 compensation in respect of the breach of the Act. Therefore the Respondent’s appeal fails.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
CR______________________
22nd September, 2015Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.