DWT1629

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

The Appellant was employed by the Respondent from June 2005 until her dismissal on 31^stMarch 2015.

Preliminary issue

The Appellant, utilising the forms made available by the Labour Relations Commission for that purpose, made complaints to the Labour Relations Commission on 21^stJuly 2015 alleging breaches of the Act at Sections 12 (Rest and intervals at work) and Section 14 (Sunday Work). Taking account of Section 27(4) of the Act therefore the cognisable period for complaints as regards these sections of the Act is 22^ndJanuary 2015 until her dismissal on 31^stMarch 2015.

The Appellant, in her written submission to the Rights Commissioner at a hearing of the Rights Commissioner held on 14^thSeptember 2015, made further complaints alleging breaches of the Act at Section 11 (Daily rest period) and Section 15 (Weekly Working Hours). The Appellant in that submission also complained that she had not received pay or ‘annual leave’ for working on a range of Public Holidays including that falling on 17^thMarch 2015.

The Rights Commissioner found that she could only deal with the Appellant’s complaints made under Sections 12 and 14 of the Act.

Then Respondent contends that the Appellant has not made valid complaints other than as regards those specified in her original complaints to the Workplace Relations Commission made on 21^stJuly 2015. The Respondent, in support of that contention, drew the Court’s attention to decisions of the High Court inCounty Louth VEC v the Equality Tribunal and Brannigan[2009] IEHC 370 and the Supreme Court in the case ofO’Leary v Minister for Transport, Energy and Communications[2000] IESC 16. The Respondent asked the Court to find that the Appellant was not entitled to amend her Complaint subsequent to making that complaint to the Workplace Relations Commission.

The Act at Section 27 deals with the making of complaint to a Rights commissioner. The Act at Section 27(6) provides

• (6) A complaint shall be presented by giving notice thereof in writing to a rights commissioner and the notice shall contain such particulars and be in such form as may be specified from time to time by the Minister.

The Act therefore requires only that a complaint to a Rights Commissioner be in writing. The Court accepts that the only complaints made in writing to the Rights Commissioner on 21^stJuly 2015 were those related to Sections 12 and 14 of the Act.

The Appellant made complaints in writing to a Rights Commissioner as regards Section 11 and 15 of the Act and the working of Public Holidays in her submission presented to the Rights Commissioner on the day of the hearing on 14^thSeptember 2015. The Act deals with Public Holiday working at Section 21. The Court therefore finds that the Appellant made a valid complaint to the Rights commissioner under Sections 11, 15 and 21 of the Act on 14^thSeptember 2015. It follows that the Court does not find that the Appellant changed her complaint of 21^stJuly 2014 but actually made further complaints in writing to the Rights Commissioner on 14^thSeptember.

The Rights Commissioner made recommendations as regards Sections 11, 12, 14, 15, 19 and 23 of the Act. The Rights Commissioner treated the Appellant’s complaint in relation to Public Holiday Working as a complaint under Section 19 of the Act – Entitlement to Annual Leave. The Appellant has, as part of her submission to the Court, included her written complaint made to the Rights Commissioner on 14^thSeptember. The Court finds that the within appeal of the Rights Commissioner decision as regards the Appellant’s complaints under Sections 11, 12, 14, 15, and 23 of the Act and her appeal as regards Public Holiday Working is a valid appeal.

The cognisable period for the complaints made on 14^thSeptember 2015 is 15^thMarch 2015 to 31^stMarch 2015, the date of the Appellant’s dismissal.

Position of the Parties

Section 11 of the Act

The Appellant

The Appellant complained that she was not afforded her entitlement to daily rest. She stated that her working hours were such that she finished work at 11.00pm and commenced work again the following day at 7.00am. She stated that as a consequence she did not receive her entitlement to 11 consecutive hours rest in each 24 hour period she worked.

The Respondent

The Respondent did not dispute the working hours of the claimant.

Section 12 of the Act

The Appellant

The Appellant contended that the nature of her work was such that she was unable to take breaks at work at all. The Appellant stated in evidence that no arrangement was in place to facilitate her to forward calls to voicemail or any other location such that she would be free from work for breaks for the periods provided by the Act.

The Respondent

The Respondent stated that the nature of the Appellant’s work and the frequency of calls were such as to mean that she was in a position to take breaks in accordance with the Act. The Respondent stated in evidence that the Appellant was provided with a facility to forward calls to voicemail in order that she might take breaks as provided for by the Act. The Respondent also stated in evidence that this was communicated to the Appellant such that she knew the arrangement to apply as regards breaks. The Respondent stated that it had engaged with staff in 2013 in order to change working arrangements at weekends and staff at that time had confirmed that they were in a position to manage their own break times. The Respondent confirmed that it did not have available records of the breaks taken by the Appellant during the cognisable period of her claim.

Section 14 of the Act

The Appellant

The Appellant contended that she was not compensated by the Respondent for being required to work on a Sunday. The Appellant contended that the amount of compensation recommended by the Rights Commissioner does not take full cognisance of the fact that it was unjust and inequitable for the Respondent to purposely disregard and breach the said Act.

The Respondent

The Respondent contended to the Court that the Appellant’s requirement to work a set number of Sundays per annum was factored in to the calculation of her salary. The Respondent further contended that her contract of employment specifically provided as follows

‘this salary is inclusive of shift premiums paid for unsociable hours worked’.

The Respondent stated that the Appellant did not work each Sunday in the cognisable period of her claim and that the amount of compensation recommended by the Rights Commissioner was just and equitable in the circumstances.

Section 15 of the Act

The Appellant

The Appellant set out no position to the Court as regards an Appeal in relation to Section 15 of the Act.

The Respondent

The Respondent set out no substantive position to the Court as regards an alleged breach of Section 15 of the Act. The Respondent did contend to the Court as set out above that the Appellant had made no valid complaint under Section 15 of the Act.

Public Holiday Working

The Appellant

The Appellant contended that she did not receive pay in respect of her working of certain Public Holidays detailed to the Court. She also stated that she was owed ‘annual leave which is made of three days bank holidays ‘ which she detailed as being 17^thMarch 2015, 17^thMarch 2014, and 27^thOctober 2014

The Respondent

The Respondent contended as set out above that the Appellant had not made a valid claim as regards Public Holiday Working.

Section 23 of the Act

The Appellant

The Appellant set out no detail to the Court of her complaint under Section 23 of the Act

The Respondent

The respondent contended to the Court that the Appellant had made no valid complaint under Section 23 of the Act.

Discussion and Conclusions

Section 11 of the Act

The Appellant made a complaint on 14^thSeptember 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 15^thMarch 2015 to 31^stMarch 2015.

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’.

Section 12 of the Act

The Appellant made a complaint on 21^stJuly 2015 to a Rights Commissioner as regards an alleged breach of Section 12 of the Act.

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 hera 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 Court was presented with a conflict of evidence as regards the arrangements provided to the Appellant to forward calls to voicemail or another location in order to facilitate her in taking breaks free from a requirement to work. The Court prefers the evidence of the Appellant in this matter.

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

Section14 of the Act

The Appellant made a complaint on 21^stJuly 2015 to a Rights Commissioner as regards an alleged breach of Section 14 of the Act.

Section 14 of the Act in relevant part provides that

• 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.

Section 14(1) of the Act provides, in effect, that an employee who is required to work on a Sunday is entitled to an additional benefit in respect of that requirement where “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”. What is intended by this provision is that a worker who is obliged to work on a Sunday is entitled to compensation for that obligation in the form of a benefit which he or she would not receive it they were not so obligated. As is clear from the opening words of s.14(1), in brackets, that compensation can take the form of an enhanced rate of pay over and above that which he or she would have received if the obligation to work on Sunday was not present. Not only must an additional benefit be provided but that benefit must be reasonable in all the circumstances. That entitlement is one of substance which a Rights Commissioner, and this Court on appeal, is obliged to vindicate.

This Court has held (Viking Security Ltd – and – Tomas Valent – DWT 1489) as follows:-

• In the Court’s view it is insufficient for the employer to simply say (as the Respondent does in this case) that because the rate exceeds the national minimum wage it compensates for Sunday working. If such a contention were to be accepted the effectiveness of the statutory provision would be seriously undermined in the case of all workers whose pay exceeds the statutory minimum.

  In practice the Court can only be satisfied that an employee has obtained his or her entitlement under s.14(1) of the Act where the element of compensation for the obligation to work on Sundays is clearly discernible from the contract of employment or from the circumstances surrounding its conclusion. Where an hourly rate is intended to reflect a requirement for Sunday working that should be identified and clearly and unequivocally specified at the time the contract of employment is concluded either in the contract itself or in the course of negotiations.

‘this salary is inclusive of shift premiums paid for unsociable hours worked’.

The Respondent contends that the salary paid to the Appellant takes account of the requirement to work on a Sunday and that the contract of employment, through the above quoted text, confirms that.

The Court finds that a mere assertion that the Appellant’s obligation to work on Sundays was taken into account in determining her rate of pay cannot be taken, on its own, as evidence of compliance with Section 14(1) of the Act.

The Court finds that the text contained within the contract and quoted above does not clearly identify that the calculation of salary addresses the Respondent’s obligations under Section 14 of the Act. The Court in any event has not been presented with clear evidence as to how such an assertion was given effect in the salary of the Appellant.

The Court finds that the Respondent’s compliance with the Act is not clearly discernible and finds therefore that the Respondent has not clearly demonstrated compliance with the Act.

Section 15 of the Act

The Court finds that no evidence or contention has been put before it contending a breach of the Act at Section 15. The Court therefore has no basis to make a finding as regards an alleged breach of Section 15 of the Act.

Public Holiday Working

The Appellant made a complaint on 14^thSeptember 2015 to a Rights Commissioner as regards an alleged breach of the Act with regard to public holiday working. The cognisable period for that complaint is therefore 15^thMarch 2015 to 31^stMarch 2015.

The Act at Section 21 in relevant part provides:

• 21.—(1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—

(b) a paid day off within a month of that day,

• (c) an additional day of annual leave,

• Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.

Section 23 of the Act

The Court finds that no evidence or contention has been put before it contending a breach of the Act at Section 23. The Court therefore has no basis to make a finding as regards an alleged breach of Section 23 of the Act.

Determination

Section 11 of the Act – The Court determines that the Respondent was in breach of the Act and should pay the sum of €500 to the Appellant as compensation.

Section 12 of the Act - The Court determines that the Respondent was in breach of the Act and should pay the sum of €1,000 to the Appellant as compensation.

Section 14 of the Act - The Court determines that the Respondent was in breach of the Act and should pay the sum of €1,000 to the Appellant as compensation.

Section 15 of the Act - The Court determines that the Respondent was not in breach of the Act.

Section 21 of the Act - The Court determines that the Respondent was in breach of the Act in respect of the Public Holiday falling on 17^thMarch 2015 and should pay to the Appellant an additional days pay in accordance with Section 21 of the Act.

Section 23 of the Act - The Court determines that the Respondent was not in breach of the Act.

The Court so determines.

Signed on behalf of the Labour Court



Kevin Foley
CO'R______________________
18th April, 2016Deputy Chairman



NOTE

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