DWT1661

SUBJECT:
1. Appeal of an Adjudication Officer's Decision No(s). r-150611-WT-15/RG


BACKGROUND:

2. This is an appeal of Adjudication Officer Decision No: r-150611-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 under section 28(1) of the Organisation of Working Time Act 1997, (the Act) by Knockmaroon Estate Company (the Respondent) against a decision of the Rights Commissioner r-150611-wt-15 issued on 14 December 2015. The Rights Commissioner decided the Appellant had infringed sections 11, 14, 15 of the Act and ordered it to pay Mr Radu Labionschi (the Complainant) compensation in the sum of €5,000.

The Respondent appealed against that decision to this Court.

Background

The respondent owns a large dwelling that is surrounded by extensive lands on which a range of animals are kept. The complainant was employed by the respondent as a Caretaker from 1 January 2010 until the employment terminated on 17 October 2014. He was paid €407.22 per week and was provided with accommodation on the estate. He had responsibility for maintaining the dwelling house and farm and for providing some services to family members and their guests, though some of those services are disputed by the respondent. He referred a complaint to the Workplace Relations Commission in which he alleged that the respondent infringed sections 11,12,14 and 15 of the Act. The Rights Commissioner decided that the complaints under section 11,14 and 15 of the Act were well founded. She decided however that complaint under section 12 of the Act was not well founded. The respondent appealed against the decision of the Rights Commissioner in respect of the complaints under sections 11,14 and 15 of the Act. The complainant did not appeal against the decision on the section 12 complaint.

The matter came on for hearing before the Court on 23 February 2016 and was adjourned until 10 May 2016 to allow further submissions from both sides.

Preliminary Issue

When the matter came before the Court the complainant sought to raise the Rights Commissioner decision regarding the section 12 complaint. The respondent objected on the grounds that it had not appealed that decision to the Court nor had the complainant. It submitted that the appeal was out of time and statute barred. The Complainant argued that as this was a de novo hearing he was entitled to raise all matters that had been in issue before the Rights Commissioner including the section 12 complaint.

The Court is required under section 28(1) of the Act to hear and decide an appeal from a “decision of an adjudication officer referred to in subsection (3) of section 27 of the Act”. It is open to the Court to affirm, vary or set aside such a decision.

A complaint may be made to a Rights Commissioner/Adjudication Officer that a provision of the Act has been infringed. Where such a complaint is made the Rights Commissioner/Adjudication Officer is required to provide the parties with an opportunity to be heard, to submit any evidence relevant to the complaint and to make any submissions in support of their respective positions. The Rights Commissioner is required thereafter to make a decision on the complaint. On receipt of that decision each of the parties is entitled to appeal against it to the Labour within the statutory time limits set out in the Act.

In this case the Rights Commissioner made a decision that sections 12 was not infringed by the Respondent. The Complainant could have appealed against that decision to the Labour Court within 42 days had he so wished. He did not do so. He now seeks to compel the Court to hear an appeal of a decision that was not appealed to it, on the grounds that the Respondent must appeal the entire case and not each decision decided by the Rights Commissioner. He cites the de novo nature of the appeal as the basis for that contention.

The Court finds no merit in that approach. The Complainant made four complaints to the Rights Commissioner. The Rights Commissioner decided each of those complaints based on the information before her. The Respondent appealed three of those decisions. It did not appeal the fourth decision. The statutory jurisdiction of the Court is given effect by an appeal of a decision by a party to the complaint. Where neither party appeals a decision the Court has no jurisdiction in the matter.

In this case neither party appealed the Rights Commissioner’s decision on the complaint under section 12 of the Act. As it was not appealed the Court has no jurisdiction to add it to those decisions that were appealed.

The de novo nature of the hearing before the Court relates to the manner in which the Court approaches the complaints before it. It does not bring within the Court’s jurisdiction matters that were not appealed to it by a party to the complaint. In that regard the submissions of the complainant are misconceived.

Determination on Preliminary Issue

There is no appeal before it of the decision of the Rights Commissioner regarding the alleged infringement of section 12 of the Act. Accordingly the Court has no statutory authority to consider a matter that was not appealed to it.

The Court so determines.

Section 11 Complaint

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 submits that he was provided with a caretaker’s house on the respondent’s estate. He said that he was required to reside in the house and to be available at all hours to tend to the requirements of the main house and of the animals housed on the estate. He said that he was regularly required to respond to security alarm activations but was at all times required to be available to do so. He also stated that he was required to attend to the needs of the animals as and when they arose and could not stay away from the estate except without the permission of the owner. He said that this involved him being permanently available for work at his place of employment Finally he said that he was required to collect and drop family and guests to and from the airport and to attend functions in the evening as required. He submits that this infringes section of the Act as he was not provided with not less than 11 consecutive hours rest in each period of 24 hours during which he worked.

Respondent's Case

The Respondent stated that he had reached an agreement with the Complainant to the effect that he would tend to the animals outside normal working hours on Sunday and in return would be facilitated with additional time off each week. That additional time consisted of the balance of the day after he had let the animals out that morning. He also said that alarm company records disclosed that the complainant was rarely required to respond to alarms after hours. Moreover he said that when the alarm triggered it would be responded to by a member of the family when one was staying in the manor house.

He said that the complainant was free to dispose of his time as he wished and did not require his permission to leave the estate. He said that he was always free to do so on his time off provided he made arrangements with the farm manager to have the animals tended to. The Respondent told the Court that he did not keep records of the complainant’s working time. He said that he did not require the complainant to collect or drop guests or family to or from the airport. He said that when he did so it was a voluntary undertaking for which he was paid. However he said that it was not service he approved or availed of.

The respondent’s spouse said that she did not require the complainant to leave or collect people to or from the airport. She said that that was a voluntary occasional arrangement he undertook at the request of those involved and for which he was paid independently by those individuals. It was in effect an elective service he provided and which he was free to decline to undertake which he often did.

Findings of the Court

The Court notes that the Respondent did not keep records as required by section 25 of the Act. Accordingly the burden of proving compliance with the act lies with the respondent. The respondent did this by tendering evidence to the Court.

The Court has considered the evidence submitted by the respondent. The Court finds that the Complainant worked 42.5 hours per week and in addition was required to be available to work at other times as and when required. The Court finds that the complainant was required to keep himself available to attend to the animals and to the estate at all hours of the day and night and that he was not permitted to leave the estate at any time without the prior approval of the respondent. The Court further finds that the complainant was required to ferry members of the family and guests to and from the Airport as and when required. The Court does not accept the contention that the complainant had an option to do so or refuse to do so at his own discretion. He was in an employment relationship with the respondent and could not refuse to carry out a request from members of the family when they were in fact instructions that he had to comply with. This situation came about in circumstances where the complainant was subject to direction from any and all members of the family when they chose to contact him. This was not a normal employment relationship. Accordingly the option of refusing a “request” from a member of the family was not a realistic option for him.

The Court therefore finds that the complainant was available for work at his place of employment at all times of the day and night. Accordingly he was not free to dispose of his time as he wished and accordingly all such hours must be classified as working time. As a consequence the complainant could not avail of an 11 hour break between the end of one shift and the commencement of his next shift resulting in an infringement of section 11 of the Act.

Determination Section 11 Complaint

The Court affirms the decision of the Rights Commissioner and determines accordingly.

Section 14

The Law

Section 14 of the Act states

• 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.

Complainant's Case

The complainant states that he was required to work on Sunday and that the obligation to do so was not otherwise taken account of in the determination of his pay

Respondent's Case

The respondent states that the complainant was required to work each Sunday but that he had agreed to afford the complainant additional time off each week by way of compensation for this obligation. He accordingly submits that he was in substantive compliance with the terms of the Act referencing section 14(c) of the Act in support of that contention.

Findings of the Court

The Court notes the conflict of evidence between the parties. However section 25 places the obligation on the respondent to prove compliance with the Act where no records have been kept. In this case the respondent did not keep records.

In evidence he stated that he had concluded an agreement in the terms outlined above. The respondent denied any such agreement. No further evidence was offered by the respondent. The Court prefers the evidence of the complainant in this regard.

The Court finds that the respondent has not discharged the burden of proving compliance with the Act. A mere assertion that an agreement had been reached, which the complainant denies, without any further evidence of such an agreement does not discharge the burden the Act places on the respondent.

Having considered the information before it the Court finds that, taking all matters into account, the respondent has not discharged the statutory burden placed on him and accordingly must find that the complaint is well founded.

Determination

The decision of the Rights Commissioner is affirmed. The Court so determines.

Section 15

The law

Section 15 of the Act 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, or
  (b) 6 months—
  (i) in the case of an employee employed in an activity referred to in paragraph 2, point 2.1. of Article 17 of the Council Directive, or
  (ii) where due to any matter referred to insection 5, it would not be practicable (if a reference period not exceeding 4 months were to apply in relation to the employee) for the employer to comply with this subsection,
  or
  (c) such length of time as, in the case of an employee employed in an activity mentioned insubsection (5), is specified in a collective agreement referred to in that subsection.

Complainant's Case

The complainant states that he was required to work as and when required by his employer which had the effect of requiring him to work in excess of 48 hours per week in the relevant statutory reference period.

Respondent's Case

The respondent states that the complainant worked 42.5 hours per week and that any additional time he worked was compensated for by way of additional time off.

Findings of the Court

No records were kept by the respondent. Accordingly the burden of proving compliance with the Act lies with it.

The Court has already determined that the complainant was permanently at his place of employment by virtue of the contingent liability he had to attend to the needs of the animals, the family, the guests and the estate. In those circumstances the Court finds that on the balance of probabilities the complainant was required to work in excess of an average of 48 hours in the relevant statutory period.

Determination

The decision of the Rights Commissioner is affirmed. The Court so determines.

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.