FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 28 (1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : KNOCKMAROON ESTATES COMPANY (REPRESENTED BY FERRYS SOLCITORS) - AND - ANDREEA LABIONSCHI (REPRESENTED BY TIERNAN SOLICITORS) DIVISION : Chairman: Mr Hayes Employer Member: Mr Marie Worker Member: Mr Shanahan |
1. Appeal of an Adjudication Officer's Decision No(s).
BACKGROUND:
2. This is an appeal of Adjudication Officer Decision No: r-150894-WT-15/RG. A Labour Court hearing took place on 23rd February, 2016 and 10th May, 2016. The following is the Court's Determination:
DETERMINATION:
This is an appeal by The Knockmaroon Estates Company (the Respondent) against a decision of the Rights Commissioner in which she decided that it had infringed sections 11 and 15 of the Organisation of Working Time Act 1997 in respect of the employment of Ms Andreea Iablsonschi (the complainant). She awarded her compensation in the sum of €3,000.
Background
The Knockmaroon Estates Company operates a large estate in the Dublin area. It employed the complainant as a housekeeper in January 2010. The complainant, and her husband, were provided with living accommodation in the basement of the Estate’s main house. The main house was not continuously occupied by the owners. It was visited by members of the family from time to time. When occupied by a member of the family the complainant was required to provide housekeep services to the occupants. This involved but was not confined to maintaining the living and sleeping quarters and to the preparation and serving of light meals.
The Complainant submits that the respondent infringed sections 11 and 15 of the Act.
The Law
Section 11 of the Act states
- 11.—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.
Complainant's Case
The complainant states that she regularly worked 47.5 hours per week but maintains that she was on call to deal with guests arriving leaving the house. She submits that this meant that she was not free to dispose of her time as she wished when she was finished work and accordingly she did not receive an 11 hour break between the end of one shift and the commencement of her next working shift. She submits that this infringes section 11 of the Act.
Respondent's Case
The respondent submits that the relevant statutory period runs from 6 May to 17 October 2014. It provided evidence of the occupancy levels of the house over that time. It submits that the complainant was notified in advance when guests were due to arrive and that she was otherwise free to dispose of her time as she wished. It submits that the Complainant guarded her time off very carefully. It rejects any notion that the complainant was on call and or required to provide services outside her normal working hours other than in exceptional circumstances which did not arise in the reference period.
Findings of the Court
The respondent’s submission identifies 15 occasions in the relevant statutory period when the house was occupied and the complainant required to provide services to the occupants. It further identifies one occasion when the complainant was required to travel with the family to Mayo where she provided services to the family as required.
The Court notes that the respondent did not keep records of the complainant’s working time as required by section 25 of the Act. Accordingly the burden of proving compliance with the Act lies with the respondent.
The Court finds that, on the balance of probabilities, on some of those occasions the complainant was not provided with an 11 hour break between her shifts. The respondent has not provided any evidence of the actual hours worked by the complainant and has offered no evidence to contradict her contention that she was not always provided with an 11 hour break in any period of 24 hours.
Determination
The Court finds that the complaint is well founded.
The decision of the Rights Commissioner is affirmed.
The Court so determines.
Section 15 Complaint
The Law
Section 15 of the Act in relevant part states
- 15.—(1) An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period ”) that does not exceed—
(a) 4 months,
Complainant's Case
The complainant states that she was required to work an average of 47.5 hours but that this increased to in excess of 48 hours when her on call hours and her attendance at family functions are included.
Respondent's Case
The respondent submits that the complainant did not work in excess of 47.5 hours per week. It noted that the house was vacant most of the year. It submitted details of the level of occupancy of the house in the relevant period and submits that this demonstrates that the complainant could not have been required to work in excess of an average of 48 hours per week in the four month statutory reference period.
Findings of the Court
The Court has examined the information provided by both sides. The Court is also aware that the complainant did not keep records within the meaning of section 25 of the Act. Accordingly the onus of proving compliance with the Act lies with the respondent.
The respondent sought to so prove compliance by listing the days on which the house was occupied. From this it argues that the complainant could not have been working in excess of an average of 48 hours.
However that argument does not take account of the on call liability that the Complainant had. She was available at all hours, at whatever notice the respondent provided, to be available for work. She lived on the premises and could not leave it without the Respondent’s permission.
In those circumstances the Court finds that the complainant had an ongoing liability to be available for work and to remain at her place of employment. That requirement gave rise to a working week of indefinite duration and certainly in excess of 48 hours.
Determination
On the basis of the information before it the Court finds that the complaint is well founded.
The decision of the Rights Commissioner is affirmed.
The Court so decides.
Signed on behalf of the Labour Court
Brendan Hayes
8th July, 2016______________________
CCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.