FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : JOHN THOMAS BRADBURY T/A BRADBURYS (REPRESENTED BY FRANCIS B TAFFE & CO SOLICITORS) - AND - SANDRA GEGECKIENE (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Mr McCarthy |
1. Appeal against a Rights Commissioner Decision R-147155-WT-14/EH
BACKGROUND:
2. The Worker appealed the Rights Commissioner's Decision to the Labour Court on the 16th February, 2015 in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 18th November, 2015. The following is the Determination of the Court.
DETERMINATION:
This is an appeal under section 28(1) of the Organisation of Working Time Act 1997.
The Complainant worked for the Respondent as a Deli Assistant from 20 February 2014 to 10 July 2014. She complained to the Rights Commissioner under section 27 of the Act that she was, on occasions during the relevant statutory period, not afforded breaks during her working day consistent with her entitlements under the Act, that she was not afforded her entitlement to annual leave as provided for in the Act, that she was not compensated for Public Holidays that fell during her employment, that she was not compensated for working on Sunday, that a requirement to work on Sunday was not set out in her contract of employment and finally that she was not notified of her working hours in a manner consistent with the Act.
The Rights Commissioner found for the Complainant on a number of issues and awarded her compensation in the sum of €381.44. The Complainant appealed against the decision to this Court under section 28(1) of the Act. The Respondent did not submit an appeal.
The matter was scheduled for hearing before the Court in July 2015. The matter opened before the Court and was adjourned to 18 November 2015. The matter was dealt with by the Court on that day.
Section 12
The Complainant argues that she on occasion during the statutory reference period, was not afforded breaks from work in accordance with Section 12 of the Act. She argued that she was regularly required to work in excess of four hours and thirty minutes without a break of 15 minutes and in excess of six hours without a break of 30 minutes.
The Respondent denied infringing the Act. In evidence Mr John Bradbury told the Court that he worked in the shop and that he was meticulous in ensuring that all staff received their breaks. He said that he maintained records under the Act that disclose that the Complainant had received her breaks while at work. He said that the records were reliable and that they accurately reflected his own observations and practice in the shop.
The law
Section 12 of the Act states
(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)
There is a straight conflict of fact between the claims of both sides in this case. The Respondent states that the Complainant was afforded her breaks. He submits records in support of that assertion.
The Complainant disputes the records, says that she clocked in and out on a time clock and that those records would prove her complaint. However those records have not been produced.
The Respondent states that those records are not available and were not the official record of her attendance at work. He states that the records he submits are the official record. He states that the clock was an old machine that was used to check some irregularities he discovered but that the output was abandoned and the clock is no longer functional. He said that those records disclose nothing as they were not the official record of attendance at work or of break times.
The Respondent argues that she never saw the official records. She argues that she did not sign them which she says supports her contention that they are not records of her attendance at work or of her breaks.
The Respondent disputes that contention. He states that he prepared the records with his accounts assistant and that they are contemporaneous and accurate and reflect what was in fact happening at the material time.
The Respondent gave evidence to the Court. The Complainant did not give evidence. She made her case to the Court by way of submissions through her Solicitor.
In his evidence the Respondent stated that the records on which he relied had been posted on a notice board and were available for signing but accepted they had not been presented to the Complainant for review and or signing. He told the Court that he had not noticed that she had never signed the records though other members of staff did. He further told the Court that he had not raised her failure to sign the records with the Complainant at any time during her employment. However he stated that he was satisfied that the Complainant received her breaks in accordance with Section 12 of the Act.
The Complainant submitted through her Solicitor that she had not seen or signed the records and stated that she had been required to work without the statutory breaks on a number of occasions in the relevant statutory period.
Section 12 of the Act states that, an employer “shall not require” an employee to work specified durations without a break of a certain length. In In this case the Respondent states that he did not so require the Complainant. The Complainant, through her Solicitor, challenged that statement but did not contradict it in evidence before the Court.
The Respondent presented records of the Complainants attendance at work. He stated that those records were a contemporaneous record of her attendance at work which demonstrates that she had received her statutory breaks while working. The Respondent, through her Solicitor, challenged those records but did not contradict them in evidence before the Court.
The Respondent stated in evidence that he was routinely present in the shop and that he ensured that the Complainant was allowed and took her breaks. The Respondent, through her solicitor, challenged that evidence but did not contradict it in evidence before the Court.
In the circumstances therefore the Court finds that there is no evidence before it that the Respondent required the Complainant to work in a manner that contravened section 12 of the Act.
The Complaint therefore has not been made out.
The decision of the Rights Commissioner is set aside.
The Court so determines.
Section 14
Section 14 of the Act states
(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.
The Complainant states that she was required to work on a Sunday and that the requirement was not otherwise taken into account in the determination of her pay. She sought compensation for being required so to work.
The Respondent acknowledges that the Complainant was required to work on a Sunday and that the requirement was not otherwise taken into account in the determination of her pay. It argued however that she was allowed her breaks when she worked and that she provided with a free meal which went some way towards compensating her. The Respondent acknowledged however that it was in error and stated that it had moved to correct that error.
The infringement of the Act is not in dispute. When the matter came before the Rights Commissioner he awarded the Complainant compensation in the sum of €281.44 for the combination of her economic loss and the infringement of her rights under Section 14 of the Act.
The Court considers the level of compensation awarded by the Rights Commissioner inadequate. It considers a figure of €350 a more appropriate sum in the circumstances of this case and varies the decision of the Rights Commissioner accordingly.
Determination on Section 14 complaint
The Court determines that the complaint is well founded and orders the Respondent to pay the Complainant compensation in the sum of €350. The decision of the Rights Commissioner is varied accordingly.
Working Sunday
The Complainant argues that the contract of employment makes no provision for working on Sunday. The Respondent submits that the contract of employment states that the Complainant’s hours of work to be “5 days per week which will include weekends” It argues that the requirement to work “weekends” includes Sunday working and the Court should determine accordingly.
The Court has considered the wording of the Contract of Employment and determines that the term “weekend” includes Sunday working.
Determination
The Court determines that the Complaint is not well founded and determines accordingly. The Court upholds the decision of the Rights Commissioner.
Section 17 Notification of Hours of Work
Section 17 of the Act states
(1) If neither the contract of employment of the employee concerned nor any employment regulation order, registered employment agreement or collective agreement that has effect in relation to the employee specifies the normal or regular starting and finishing times of work of an employee, the employee's employer shall notify the employee, subject to subsection (3) , at least 24 hours before the first day or, as the case may be, the day, in each week that he or she proposes to require the employee to work, of the times at which the employee will normally be required to start and finish work on each day, or, as the case may be, the day or days concerned, of that week.
The Complainant states that her working week commenced on Thursday and she was notified of her shift for the week by way of a notice posted on Wednesday. She states that this notice was not posted 24 hours in advance of the commencement of her first shift and accordingly the Respondent infringed Section 17 of the Act.
The Respondent stated that he was in constant contact with the staff in the shop, including the Complainant, to establish their availability for the coming week and built the rosters around the needs of the staff and the business.
The evidence before the Court is that the Complainant was formally notified on Wednesday of her roster for the following week commencing Thursday. The Court accepts that there was a significant amount of consultation between the proprietor and the staff to match availability with needs. However the formal notification of hours for the following week were set out in the roster posted on Wednesday to take effect on Thursday. In that regard the Complainant was not given 24 hours’ notice of her start time when scheduled to work on Thursday morning. However the Court also notes the circumstances in which the infringement arose and has taken that into consideration in its determination.
Determination
The Court upholds the complaint and instructs the Respondent to pay the Complainant compensation in the sum of €100.
Section 19/20/21
The Complainant states that she is paid less than the minimum wage and if a separate claim under that Act is successful then she was underpaid in respect of annual leave and public holiday entitlements.
The Court determines that those matter can be dealt with under the Minimum Wage Act.
The Complainant further argues that as the Complainant was required to work on Sunday her pay rate varied and accordingly her annual leave and public holiday pay should be determined in accordance with Regulation 3(2) of S.I. 475 of 1997.
The Respondent argues that the Complainant was paid the correct holiday pay and that any monies due to her had been fully satisfied.
The relevant section of the Statutory Instrument states Regulations "the Act" means the Organisation of Working Time Act, 1997 (No. 20 of 1997).
2. (1) In these
(2) References in these Regulations to a sum paid to an employee in respect of time worked by him or her shall, where appropriate (and, in particular, in a case of the employer's insolvency), be construed as including references to a sum that is liable to be paid to the employee in respect of time worked by him or her and references to an employee's pay shall be construed accordingly.
Normal weekly rate of pay
3. (1) The normal weekly rate of an employee's pay, for the purposes of sections 20 and 23 of the the Act (hereafter in this Regulation referred to as the "relevant sections"), shall be determined in accordance with the following provisions of this Regulation.
(2) If the employee concerned's pay is calculated wholly by reference to a time rate or a fixed rate or salary or any other rate that does not vary in relation to the work done by him or her, the normal weekly rate of his or her pay, for the purposes of the relevant sections, shall be the sum (including any regular bonus or allowance the amount of which does not vary in relation to the work done by the employee but excluding any pay for overtime) that is paid in respect of the normal weekly working hours last worked by the employee before the annual leave (or the portion thereof concerned) commences or, as the case may be, the cesser of employment occurs.
(3) If the employee concerned's pay is not calculated wholly by reference to any of the matters referred to in paragraph (2) of this Regulation, the normal weekly rate of his or her pay, for the purposes of the relevant sections, shall be the sum that is equal to the average weekly pay (excluding any pay for overtime) of the employee calculated over—
( a ) the period of 13 weeks ending immediately before the annual leave (or the portion thereof concerned) commences or, as the case may be, the cesser of employment occurs,
or
( b ) if no time was worked by the employee during that period, over the period of 13 weeks ending on the day on which time was last worked by the employee before the annual leave (or the portion thereof concerned) commences or, as the case may be, the cesser of employment occurs.
Appropriate Daily rate of pay ("the relevant rate")
In this case the Complainant’s rate of pay was calculated wholly by reference to a time rate and did not vary in relation to the work done by her. It did vary when she worked on Sunday but that is not what is envisaged in 3 (3) above. That section refers to pay in the nature of piece rate or commission and in that sense deals with pay that varies in relation to the work done by an employee. Sunday premium however is an allowance and accordingly must be included for the purpose of determining pay for the purposes of annual leave public holiday entitlements.
Determination
The Court determines that the Complaint is well founded. The decision of the Rights Commissioner is set aside. The Court determines that pay in respect of annual leave entitlements must include any allowance in the nature of a Sunday premium. The Court accordingly orders the respondent to pay the Complainant compensation in the sum of €120.
The Court so determines.
Determination
The Court determines that this matter falls to be dealt with under the Minimum Wage Act.
Signed on behalf of the Labour Court
Brendan Hayes
24th February, 2016______________________
CCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.