FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 28 (1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : JR BONING (IRELAND) LIMITED (REPRESENTED BY ARRA HRD) - AND - NIGMATAS ORLOVICIUS (REPRESENTED BY OLIVER COSTELLO, B.L. INSTRUCTED BY BARRY HEALY & COMPANY SOLICITORS) DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal of an Adjudication Officer's Decision No r-149506-wt-14.
BACKGROUND:
2. An Adjudication Officer hearing took place on 30 November 2015, and a Decision was issued on 12 February 2016.
The Employer appealed the Decision of the Adjudication Officer to the Labour Court on 14 March 2016, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 3 May 2016.
DETERMINATION:
- 1. This is an appeal under section 28(1) of the Organisation of Working Time Act 1997 (the Act) by J R Boning (Ireland) Limited (the Appellant) against a decision of the Adjudication Officer reference number r-149506-wt-14/EOS issued on 12 February 2016. The appeal was filed with the Labour Court on 14 March 2016.
2. The Adjudication Officer decided that the Appellant had infringed Mr Nigmatas Orlovicius’s (the Complainant) statutory entitlements under sections 12 and 17 of the Act and awarded him compensation in the sum of €3,700 for the infringements involved.
3. The appellant was not in attendance at the hearing of the complaints before the Adjudication Officer. As a consequence it was required, in accordance with section 71 of the Workplace Relations Act 2013 and in line with S.I. 536 of 2015, to pay €300 in fees in order to bring its appeal before the Court. It is seeking the return of the fee in this case. It submits that there was good cause for its non-attendance at hearing before the Adjudication Officer.
Background
4. The Complainant works for the respondent in its meat plant. He commenced employment with the Appellant on 23 September 2009. His employment terminated on 22 May 2014. The circumstances in which his employment ended was the subject of a complaint under the Unfair Dismissals Act 1977. That case was settled between the parties before the matter came on for hearing.
Failure to Attend Hearing
5. The Appellant submits that it changed the registered address of the Company between the date on which it first received notification of the Complaint and the date on which the Adjudication Officer notified it of the arrangements for the hearing of the complaint. As a consequence the relevant correspondence was sent to the old registered address. It was not forwarded in time to the new address. Consequently the Appellant was not aware that the hearing had been arranged and did not attend on the appointed day. It submits that this is an unusual circumstance and amounts to good cause for its failure to enter an appearance in this case before the Adjudication Officer.
6. The Complainant did not make any submissions to the Court on this matter.
7. The Court finds that the Complainant received a copy of the Complaint at the Company’s registered address. It subsequently changed that address but did not notify the Court of the change. Neither did it put in place any formal arrangements to have post forwarded to the new address.
8. In these circumstances the Court finds that the Appellant is entirely responsible for its own failure to take minimal steps to manage the consequences of the change of address of the Company’s registered office. The entire matter could have been avoided had the Appellant either notified the Court of the change of address or had it put mail forwarding arrangements in place. It did neither. As a consequence the Court finds that such a failure to put in place such simple measures does not amount to good cause for its failure to attend at the hearing before the Adjudication Officer. It is precisely to ensure that such minimal attention to administrative matters with the Workplace Relations Commission that a fee in these circumstances is charged by the Court where a party that made no appearance at first instance seeks to appeal a decision of an adjudication officer.
Determination of Fee
9. Accordingly the Court rejects the application for a return of the fee in this case.
Section 12 Complaint
10. Section 12 of the Act states
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 her a 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).
- 11. The Complainant states that he worked on average 3 days per week with the Appellant. His hours of work were normally 6.00 am to 4.00 pm. But often at short notice he was required to work 5 days per week and would often be required to work from 6.00 am to 6.00 pm. He submits that he was not afforded adequate breaks during his working day. He submits that he received one short break at 8.30 am which had a duration of 15 minutes. He submits that he had a second 5 minute break at 10.30 am. He submits that he received a further break of 15 minutes duration at 1.00 pm. He submits that his work station was a 5 minute walk from the canteen. He submits that, as a consequence, his break was in large measure over before he was in a position to avail of a period of rest. He submits that towards the end of his employment arrangements were made to allow him a further 5 minute break at 3 pm on those occasions when he was required to work until 4.00 pm. He submits that these do not amount to adequate rest breaks and are contrary to section 12 of the Act.
12. The Appellant submits that the Complainant normally worked from 6.30 am until 2.30 pm. It submits that he was afforded a 15 minute break at 8.30 am and a further break of 7 minutes at 10.30 am. It submits that he was afforded a further 15 minute break at 12,30 pm. Finally it submits that he was allowed a further 15 minute break at 2.30 pm when required to work overtime. It submits that the Complainant worked as part of a team on a line that was shut down to allow staff take breaks. It submits it would not be credible for the Complainant to say that he is treated any differently to any other employee who also works on the line. It submits that the breaks are agreed with the trade union and have been registered with the Labour Court under the Act.
13. The Court considered the submissions of both parties to the dispute. The Appellant submits an agreement with Unite the Union that makes provision for two 20 minute breaks for staff on day work and a further 20 minute break where an additional 1.5 hours overtime is required. However it is clear from its own submissions to the Court that it does not apply those breaks to the staff.
14. Instead it submits that it affords staff the breaks outlined at 12 above. However the Complainant disputes this and states that he is afforded the breaks outlined at 11 above.
15. Section 25 of the Act states
- 25.—(1) An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this Act and, where applicable, the Activities of Doctors in Training Regulations are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making.
(2)not relevant.
(3) not relevant
(4) Without prejudice to subsection (3), where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act or the Activities of Doctors in Training Regulations in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.
17. The appellant submits that it met the requirements of the Act but offered no other evidence in support of that submission.
18. The Complainant told the Court that he did not receive the breaks claimed by the Appellant. He told the Court that he received the breaks set out at 11 above.
19. The Complainant started work at 6.00 am as he contends or at 6.30 am as the Appellant contends. Accordingly his employer may not require him to work more than six hours without a break of at least 30 minutes duration In this case the Complainant told the Court that he was required to work for six hours with a break of 20 minutes. The Appellant offered no records or evidence to contradict that contention. Indeed the Appellant offered a number of contradictory documents that indicated that various inconsistent break regimes were in operation in the plant. The Court was not persuaded that the Appellant was no operating in compliance with the statutory provisions regarding breaks at work.
20. As the burden of proving compliance with the Act lies with the Appellant the Court finds that it has failed to do so in this case. Accordingly the Court finds that the Complaint is well founded.
21. The Court finds that the Adjudication Officer award is both reasonable and proportionate and upholds the decision.
Determination Section 12 Complaint
22. The Court finds that the Complaint is well founded. The Appeal is not allowed. The decision of the Adjudication Officer is upheld. The Court so determines.
23. The Complainant alleged that Appellant infringed section 17 of the Act.
- 25.—(1) An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this Act and, where applicable, the Activities of Doctors in Training Regulations are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making.
Section 17 states
- 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.
25. The Appellant submits that the plant was unionised and infringements of section 17 of the Act such as those complained of would not have been tolerated. In addition it submits that the Complainant at no point raised a grievance on this matter.
26. Statutory Instrument no 473 of 2001 states
- 3The records required to be kept under section 25(1) shall contain the following particulars and documents —
(d)a copy of a written record of a notification issued to an employee concerned in relation to any of the matters provided for in section 17 (including a copy of a notice posted in the manner referred to in subsection 5 of that section),
28. The appellant offered no evidence to the Court in support of its contention that it complied with Section 17(1) of 17(2) of the Act. Accordingly the Court finds that the Complaint is well founded and determines accordingly.
29. The Court finds that the decision of the Adjudication Officer is reasonable and proportionate in all the circumstances and affirms the decision in this case.
Determination
30. The Court finds that the Complaint is well founded. The appeal is not allowed. The decision of the Rights Commissioner is affirmed.
31. The Court so determines
- 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.
Signed on behalf of the Labour Court
Brendan Hayes
16 June 2016______________________
MNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.