DWT1640

The Appellant was employed by the Respondent from April 2012 until the termination of his employment on 18^thMarch 2015.

Preliminary issue

The Appellant contended that the Respondent’s representatives had no automatic right of representation before the Court in the within case.

The Court considered this matter in accordance with Section 44 of the Workplace Relations Act, 2015 (the Act of 2015). The Court, in accordance with the provisions of Section 44(9)(a)(iv) of the Act of 2015, decided to permit the Respondent to be represented by Peninsula Business Services ltd.

Position of the Parties

Section 12 of the Act

The Appellant

• The Appellant contended that he normally worked from 2.30pm to 11.00pm each day and that he was afforded two breaks of 5 minutes each and one break of 10 minutes during that period of time.

• The Respondent stated that the Appellant received four ten minutes breaks at intervals during his period of working from 2.30pm to 11.00pm.

The Appellant

• The Appellant contended that while he normally worked from 2.30pm to 11.00pm he was regularly required to start and finish at different times. He contended that he did not receive adequate notice of changes to his start and finish times.

• The Respondent contended to the Court that the Appellant at all times received a minimum of 24 hour’s notice of his working hours. In addition the Respondent contended that whenever the Appellant worked on a Sunday he did so on a voluntary basis.

The Appellant

• The Appellant contended that he did not receive payment in respect of his holiday entitlement in accordance with Section 19 of the Act.

• The Respondent contended to the Court that the Appellant had received his full entitlement to paid holidays in accordance with Section 19 of the Act.

The Appellant

• The Appellant contended that he did not receive his entitlement in respect of Public Holidays as provided for at Section 21 of the Act.

• The Respondent contended that the Appellant was paid appropriately for four Public Holidays falling in the cognisable period of the Appellant’s claim – 25^thOctober 2014 to 24^thApril 2015.

Discussion and Conclusions

Section 12 of the Act

The Appellant made a complaint on 24^thApril 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 break arrangements provided to the Appellant. In any event the Court was not presented with evidence that the Appellant was afforded adequate breaks while at work in accordance with Section 12 of the Act.

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

Section 17 of the Act

The Appellant made a complaint on 24^thApril 2015 to a Rights Commissioner as regards an alleged breach of Section 17 of the Act.

Section 17 of the Act provides that

• 17.—(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.

  (2) If the hours for which an employee is required to work for his or her employer in a week include such hours as the employer may from time to time decide (in this subsection referred to as “additional hours”), the 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 that week on which he or she proposes to require the employee to work all or, as the case may be, any of the additional hours, of the times at which the employee will be required to start and finish working the additional hours on each day, or, as the case may be, the day or days concerned, of that week.

  (3) If during the period of 24 hours before the first-mentioned or, as the case may be, the second-mentioned day in subsection (1) or (2), the employee has not been required to do work for the employer, the time at which the employee shall be notified of the matters referred to in subsection (1) or (2), as the case may be, shall be not later than before the last period of 24 hours, preceding the said first or second-mentioned day, in which he or she has been required to do work for the employer.

  (4) A notification to an employee, in accordance with this section, of the matters referred to in subsection (1) or (2), as the case may be, shall not prejudice the right of the employer concerned, subject to the provisions of this Act, to require the employee to start or finish work or, as the case may be, to work the additional hours referred to in subsection (2) at times other than those specified in the notification if circumstances, which could not reasonably have been foreseen, arise that justify the employer in requiring the employee to start or finish work or, as the case may be, to work the said additional hours at those times.

  (5) It shall be a sufficient notification to an employee of the matters referred to in subsection (1) or (2) for the employer concerned to post a notice of the matters in a conspicuous position in the place of the employee's employment.

It is common case that the Appellant normally worked from 2.30pm to 11.00pm Monday to Friday or 12.00pm to 8.00pm on Saturdays. The Court has been presented with conflicting evidence as regards the notification provided to the Appellant as regards changes to his start and finishing times when they occurred. The Court, on the balance of probabilities, prefers the evidence of the Appellant in this matter.

The Court finds that the Respondent breached the Act at Section 17 in the cognisable period.

Section 19 of the Act

The Court has been provided with extensive detail of the payments made to the Appellant in respect of Annual Leave in the cognisable period.

The Court finds that the respondent was not in breach of Section 19 of the Act in the cognisable period.

Section 21 of the Act

The Appellant made a complaint on 24^thApril 2015 to a Rights Commissioner as regards an alleged breach of the Act with regard to public holiday working.

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.

The Court finds that the Respondent was not in breach of Section 21 of the Act in the cognisable period.

Determination

The Court finds that the Respondent was in breach of the Act at Sections 12 and 17. The Court finds that the Respondent was not in breach of the Act at Sections 19 or 21.

The Court measures the compensation which is just and equitable in all of the circumstances as €1,000 and requires the Respondent to pay compensation in that amount to the Appellant.

The Court so determines.

Signed on behalf of the Labour Court



Kevin Foley
CO'R______________________
8th June 2016Deputy Chairman



NOTE

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