FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : ANALOG DIGITAL SECURITY - AND - ROBERT MURPHY DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner's Decision r-148247-wt-14/POB.
BACKGROUND:
2. The Employer appealed the Rights Commissioner's Decision to the Labour Court on 27th May, 2015. A Labour Court Hearing took place on 17th September, 2015. The following is the Labour Court's Determination:
DETERMINATION:
This is an appeal by Analog Digital Security against the decision of a Rights Commissioner in a claim by Robert Murphy under the Organisation of Working Time Act 1997 (the Act).
In this Determination the parties are referred to as they were at first instance. Hence Analog Digital Security is referred to as the Respondent and Mr Murphy is referred to as the Claimant.
The matter before the Rights Commissioner related to a claim by the Claimant that he was not afforded a daily rest period of 11 hours between shifts.
The Rights Commissioner found for the Claimant although he appears to have erroneously believed that s.11 of the Act entitled an employee to eight hours rest between finishing time on one day and his or her starting time on the following day. The statutory entitlement is to eleven hours rest. The Rights Commissioner awarded the Claimant compensation in the amount of €100.
The Respondent accepts that it did not maintain records in the statutory form as required by s.25 of the Act. Consequently, in accordance with subsection (4) of that section the Respondent bears the burden of proving that the Act was not contravened.
The Claimant told the Court that he was required to leave Limerick at 5am and drive to his work location in Dublin. At the end of his shift he was required to drive back to Limerick, often arriving home after 10pm. He would then be required to leave on the following morning at 5am. According to the Claimant this occurred up to twice per week.
The Respondent denied the Claimant’s claim. According to the Respondent the Claimant was contractually required to work 39 hours per week and this was not exceeded.
Conclusion
Having heard the evidence of both sides, and in the absence of records that comply with s.25 of the Act, the Court prefers the Claimant’s version of events. Accordingly the Claimant is entitled to succeed.
While the Claimant has not cross appealed the Court is nonetheless required to form its own view on the compensation that is fair and equitable in the circumstances. Having regard to all the circumstances the Court measures compensation in the amount of €500. The Claimant is awarded compensation in that amount.
Disposal
The appeal is disallowed and the Rights Commissioner decision is varied in terms of this Determination.
Signed on behalf of the Labour Court
Kevin Duffy
24th September, 2015______________________
JMcCChairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.