FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : HSE SOUTH (ST PATRICK'S HOSPITAL) - AND - RUTH POWER DIVISION : Chairman: Mr Hayes Employer Member: Mr Marié Worker Member: Ms O'Donnell |
1. Appeal of Rights Commissioner's Decision R-152163-WT-14/MMG.
BACKGROUND:
2. The Worker appealed the Decision of the Rights Commissioner to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997 on 8th July 2015. A Labour Court hearing took place on 11th March, 2016. The following is the Determination of the Court:
DETERMINATION:
This is an appeal by Ms Ruth Power against the quantum awarded by the Rights Commissioner arising out of a decision, ref r-152163-wt-14/MMG, under section 27 of the Organisation of Working Time Act 1998. The Rights Commissioner decided that the HSE (St Patricks Hospital) infringed section 12 of the Act and awarded the Complainant compensation in the sum of €200. The Complainant appealed against that decision to this Court. The decision was issued on 3 June 2015 and appealed to the Court on 22 July 2015. The case came on for hearing on 10 March 2016.
The Complainant appeared in person and told the Court that she was employed as a care assistant and was rostered for duty on rotating shifts of various lengths which included a number that were of 12 hours duration. She told the Court that when working those shifts she was entitled to a morning and afternoon break of 15 minutes duration and an unpaid lunch break of 1 hour duration. She told the Court that due to staff shortages it was not possible to take the afternoon break. She said that this was well known and that she had reported it to her immediate manager. She said that this had the effect of requiring her to work in excess of 4 hours and 30 minutes without a break of 15 minutes contrary to section 12(1) of the Act.
The Respondent told the Court that the rosters provided for an afternoon break of 15 minutes and was designed to ensure that no member of staff was required to work in a manner that infringed the Act. It did not maintain records of the breaks that were taken by the Complainant. It noted that it had discussed the matter with other members of staff in the Department all of whom confirmed that they availed of the breaks as rostered. However it told the Court that it was not in a position to contradict the evidence of the Complainant.
Findings and Determination
Section 25 of the Act requires an employer to maintain records that demonstrate that it is complying with the provisions of the Act. Where it does not do so, the Act places the statutory burden of proving compliance on the employer.
In this case the employer did not maintain records of the breaks taken by the Complainant. Furthermore it told the Court that it was not in a position to offer any evidence to contradict the Complainant’s contention that she was not afforded the opportunity to take an afternoon break when working 12 hour shifts.
The Court found the Complainant an honest and credible witness and accepts her evidence that she was required to work in excess of 4 hours and 30 minutes without a break when rostered to work 12 hour shifts.
In these circumstances the Court determines that the employer infringed section 12 of the Act in respect of the complainant’s employment when rostered to work 12 hour shifts.
The Court takes the view that section 12 of the Act is designed to ensure that workers are not required to work for prolonged periods without a break in order to protect their health and wellbeing at work. A failure to afford a worker the breaks to which they are entitled constitutes a serious infringement of their rights. In that context the Court takes the view that compensation in the sum of €1000 is fair and just in all the circumstances of this case and amends the decision of the Rights Commissioner accordingly.
Determination
The Court determines that the complaint is well founded and orders the employer to pay the complainant compensation in the sum of €1000. The decision of the Rights Commissioner is varied accordingly.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
31st March 2016______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.