DWT1627

FULL RECOMMENDATION

WTC/16/24

DETERMINATIONNO.DWT1627

r-156397-wt-15/rg

INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 28 (1), ORGANISATION OF WORKING TIME ACT, 1997

PARTIES :

GINO'S ITALIAN ICE-CREAM LIMITED

- AND -

EWELINA GACEK
(REPRESENTED BY E M O' HANRAHAN SOLICITORS)

DIVISION :

Chairman: Mr Foley
Employer Member: Mr Marie
Worker Member: Mr Shanahan

SUBJECT:
1. Appeal of an Adjudication Officer's Decision No r-156397-wt-15/RG

BACKGROUND:

2. An Adjudication Officer hearing took place on 23 September 2015, and 1 December 2015 , and a Decision was issued on 27 January 2016.

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 11 February 2016, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 22 March 2016.

DETERMINATION:

This is an appeal by Ms Ewelina Gacek (the Appellant) against a decision of an Adjudication Officer / Rights Commissioner on a claim brought by her against her former employer, Gino’s Italian Ltd (the Respondent), under the Organisation of Working Time Act, 1977 – 2015 (the Act).

The Adjudication Officer / Rights Commissioner found that the Appellant’s claim was well founded in part.

The Appellant was employed by the Respondent from July 2014 until her employment terminated on 19^thMay 2015. A complaint under the Act was made to the Labour Relations Commission on 15^thMay 2015.

Preliminary issue

The Respondent drew the Court’s attention to a confirmation in the Appellant’s appeal documentation that a claim was being pursued by the Appellant in relation to personal injuries. That confirmation was phrased as follows:

“Claimant is pursuing a personal injuries claim in relation to a burn injury which she sustained at work, an attributes same to the Respondent’s negligence and breach of duty, including the breaching of the Acts herein”.

The Respondent asserted that the factual matrix for liability in respect of the personal injury claim is the same as that of the within matter. The Respondent requested the Court to adjourn the hearing of the within appeal pending the completion of the personal injuries litigation.

The Court has considered this request in detail. The Court understands that no procedures have as yet been progressed to the point where the Appellant’s Personal Injuries action is before another Court, Tribunal or other adjudicative forum. The Appellant confirmed to the Court her wish to proceed with her Appeal before this Court.

The Court considers that the within Appeal is properly before it and that no circumstance arises whereby this Court should not proceed to hear this matter. It will be a matter for any other Court, Tribunal or adjudicative body considering any future litigation founded on the same factual matrix as that before this Court to consider any issue for that forum that might be raised by the Respondent consequent on this Court’s exercise of its jurisdiction.

Discussion and Conclusions

The Respondent contended to the Court that the Appellant was the manager of the Store and as such was responsible for ensuring compliance with the Act. The Court finds that the responsibility for ensuring compliance with the Act rests with the employer. That responsibility extends to the Appellant notwithstanding that she was a manager employed by the Respondent.

Section 11 of the Act

The Appellant made a complaint on 15^thMay 2015 to a Rights Commissioner as regards an alleged breach of Section 11 of the Act. The cognisable period for the complaint as regards daily rest is therefore 16^thNovember 2014 to 15^thMay 2015. The within complaint however relates to the period from 6^thto 18^thMarch 2015. The Appellant supplied payslips setting out her working hours. The employer was not in a position to supply records of the Appellant’s working hours for the material dates.

Section 11 of the Act provides that

‘An Employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer’.

The Court finds that the Respondent breached the Act at Section 11 in the cognisable period.

Section 12 of the Act

The Appellant made a complaint on 15^thMay 2015 to a Rights Commissioner as regards an alleged breach of Section 12 of the Act. The cognisable period for the complaint as regards daily rest is therefore 16^thNovember 2014 to 15^thMay 2015.

The Act at Section 12 provides as follows:

12.—(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).
(3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour).
(4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2).

The Appellant confirmed to the Court that her complaint as regards Section 12 of the Act related to the period from 16^thNovember 2014 to 15^thMay 2015. She was unable to specify the detail of dates on which she alleges that breaches of the Act occurred during this period.

The Respondent did not provide the Court with records of the breaks taken by the Appellant during the cognisable period.

The Court finds that the respondent breached the Act at Section 12 in the cognisable period.

Section 13 of the Act

The Appellant made a complaint on 15^thMay 2015 to a Rights Commissioner as regards an alleged breach of Section 13 of the Act. The cognisable period for the complaint as regards daily rest is therefore 16^thNovember 2014 to 15^thMay 2015.

Section 13 of the Act provides as follows:

13.— (1) In this section “daily rest period” means a rest period referred to in section 11 .

(2) Subject to subsection (3), an employee shall, in each period of 7 days, be granted a rest period of at least 24 consecutive hours; subject to subsections (4) and (6), the time at which that rest period commences shall be such that that period is immediately preceded by a daily rest period.
(3) An employer may, in lieu of granting to an employee in any period of 7 days the first-mentioned rest period in subsection (2), grant to him or her, in the next following period of 7 days, 2 rest periods each of which shall be a period of at least 24 consecutive hours and, subject to subsections (4) and (6)—
- (a) if the rest periods so granted are consecutive, the time at which the first of those periods commences shall be such that that period is immediately preceded by a daily rest period, and
  (b) if the rest periods so granted are not consecutive, the time at which each of those periods commences shall be such that each of them is immediately preceded by a daily rest period.
(4) If considerations of a technical nature or related to the conditions under which the work concerned is organised or otherwise of an objective nature would justify the making of such a decision, an employer may decide that the time at which a rest period granted by him or her under subsection (2) or (3) shall commence shall be such that the rest period is not immediately preceded by a daily rest period.

(5) Save as may be otherwise provided in the employee's contract of employment—

(a) the rest period granted to an employee under subsection (2), or

(b) one of the rest periods granted to an employee under subsection (3),

shall be a Sunday or, if the rest period is of more than 24 hours duration, shall include a Sunday.
(6) The requirement in subsection (2) or paragraph (a) or (b) of subsection (3) as to the time at which a rest period under this section shall commence shall not apply in any case where, by reason of a provision of this Act or an instrument or agreement under, or referred to in, this Act, the employee concerned is not entitled to a daily rest period in the circumstances concerned.

The Appellant contended that she worked 13 consecutive days from 6^thto 18^thMarch 2015. The Respondent did not dispute that contention.

The Court finds that the respondent breached the Act at Section 13.

Determination

The Court determines that the complaints under sections 11, 12 and 13 of the Act are well founded. The Court measures the level of compensation which is just and equitable in all of the circumstances at €2,250.

Signed on behalf of the Labour Court

Kevin Foley
11 April 2016______________________
MNDeputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.