FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : MONKLAND OYSTER HOTELS LTD T/A ATHLONE SPRINGS HOTEL (REPRESENTED BY WALKER O'CARROLL & HOGAN SOLICITORS) - AND - MICHELLE SMITH (REPRESENTED BY BURKE HUNT & CO SOLICITORS) DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. Appeal of a Rights Commissioner's Decision R-069290-Wt-08/SR
BACKGROUND:
2. This case concerns an appeal by the Company of Rights Commissioner's Decision No. R-057299-WT-08/SR. The Worker was employed by the Company from February 2008 until May 2008. It was the workers claim that she did not receive appropriate breaks, worked excessive hours and was not given the required notification regarding overtime under the Organisation of Working Time Act, 1997. The Company rejects the Worker's claims.
The dispute was referred to Rights Commissioner for investigation. It is the Company's contention that it received no notification of the Rights Commissioner hearing. The Decision of the Rights Commissioner was issued on 5th March, 2009. The Company subsequently appealed the Rights Commissioner's Decision in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 7th May, 2010.
DETERMINATION:
Background:
1.1. The case comes before the Court by way of an appeal by the Respondent (Monkland Oyster Hotels Ltd T/A Athlone Springs Hotel) against a decision of the Rights Commissioner under the provisions of the Organisation of Working Time Act, 1997. (the Act)
1.2. The Respondent advanced five grounds of appeal
- The Respondent did not receive notification of the Rights Commissioner Hearing of 14/01/09 and was unable to defend claims raised by the Complainant
- The Respondent challenged the alleged Reasonable cause justifying the extension of the period for bringing complaints pursuant to Section 27(5) of the Act
- The Respondent challenged the Decision of the Rights Commissioner to uphold the complaint regarding the Complainant’s access to Daily Breaks
- The Respondent submitted that, as the Complainant had not made a claim under Section 17(2) of the Act, the Rights Commissioner was not entitled to make a finding under this Section.
- The Respondent appealed against the compensation and, without prejudice thereto, the amount of compensation awarded by the Rights Commissioner.
Employment History:
- The Respondent employed the Complainant from 28th February 2008 until the 13th May 2008. Her gross weekly pay was €384.62.
Issues Under Appeal:
At the hearing, the issues before the court was reduced, by agreement between the parties, to one of whether or not the Respondent had arranged for the Complainant to avail of the statutory daily rest breaks provided for in Section 12 (1) of the Act
Section 12 of the Act provides:- 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.
The Minister may make regulations under Section 4 (3) of the Act granting exemptions from the application of Sections 11. 12, 13, 16 and 17 to any activity referred to in paragraph 2, point 2.1 of Article 17 of the EU Council Directive. Section 4(3) of the Act provides: -
- 4(3) Subject to subsection (4), the Minister may by regulations exempt from the application ofsection 11,12,13,16or17any activity referred to in paragraph 2, point 2.1. of Article 17 of the Council Directive, or any specified class or classes of such activity, and regulations under this subsection may, without prejudice tosection 6, provide that any such exemption shall not have effect save to the extent that specified conditions are complied with.
- ORGANISATION OF WORKING TIME (GENERAL EXEMPTIONS) REGULATIONS, 1998.
I, TOM KITT, Minister for Labour, Trade and Consumer Affairs, in exercise of the powers conferred on me by subsection (3) ofsection 4of theOrganisation of Working Time Act, 1997(No. 20 of 1997), as adapted by the Enterprise and Employment (Alteration of Name of Department and Title of Minister) Order, 1997 (S.I. No. 305 of 1997), and the Enterprise, Trade and Employment (Delegation of Ministerial Functions) (No. 2) Order, 1997 (S.I. No. 330 of 1997), and having complied with subsection (4) of the said section 4, hereby make the following regulations:
Citation and commencement
1.These Regulations may be cited as the Organisation of Working Time (General Exemptions) Regulations, 1998, and shall come into operation on the 1st day of March, 1998.
Definitions
2.In these Regulations—
“the Act" means theOrganisation of Working Time Act, 1997(No. 20 of 1997);
"the exemption" means the exemption provided for by Regulation 3(1) of these Regulations.
Exemption
3. (1) Without prejudice to Regulations 4 and 5 of these Regulations and subject to the subsequent provisions of this Regulation, each of the activities specified in the Schedule to these Regulations is hereby exempted from the application of sections 11, 12, 13 and 16 of the Act.
(2) The exemption shall not, as respects a particular employee, apply in relation to
(a) section 11, 12, 13 or 16 of the Act if the employee—
(i) is not engaged wholly or mainly in carrying on or performing the duties of the activity concerned,
(ii) is exempted from the application of that section by virtue of regulations under section 3(3) of the Act,
or
(iii) falls within a class of employee in relation to which a joint labour committee (within the meaning of the Industrial Relations Acts, 1946 to 1990) may perform functions under those Acts,
or
(b) section 16 of the Act if the employee is a special category night worker within the meaning of subsection (3) of the said section 16.
(3) The exemption shall not apply, as respects a particular employee, if and for so long as the employer does not comply with Regulation 5 of these Regulations in relation to him or her.
4.If an employee is not entitled, by reason of the exemption, to the rest period and break referred to in sections 11, 12 and 13 of the Act, the employer shall ensure that the employee has available to himself or herself a rest period and break that, in all the circumstances, can reasonably be regarded as equivalent to the first-mentioned rest period and break.
Duty of employer with respect to the health and safety of employee
5. (1) An employer shall not require an employee to whom the exemption applies to work during a shift or other period of work (being a shift or other such period that is of more than 6 hours duration) without allowing him or her a break of such duration as the employer determines.
(2) In determining the duration of a break referred to in paragraph (1) of this Regulation, the employer shall have due regard to the need to protect and secure the health, safety and comfort of the employee and to the general principle concerning the prevention and avoidance of risk in the workplace.
Saving
6.Nothing in Regulation 4 or 5 of these Regulations shall prejudice a provision or provisions of a more beneficial kind to the employee concerned which is or are contained in—
(a) a collective agreement referred to in section 4(5) of the Act,
(b) a registered employment agreement,
or
(c) an employment regulation order.
SCHEDULE
1. An activity in which the employee is regularly required by the employer to travel distances of significant length, either from his or her home to the workplace or from one workplace to another workplace.
2. An activity of a security or surveillance nature the purpose of which is to protect persons or property and which requires the continuous presence of the employee at a particular place or places, and, in particular, the activities of a security guard, caretaker or security firm.
3. An activity falling within a sector of the economy or in the public service—
(a) in which it is foreseeable that the rate at which production or the provision of services, as the case may be, takes place will vary significantly from time to time,
or
(b) the nature of which is such that employees are directly involved in ensuring the continuity of production or the provision of services, as the case may be,
and, in particular, any of the following activites—
(i) the provision of services relating to the reception, treatment or care of persons in a residential institution, hospital or similar establishment,
(ii) the provision of services at a harbour or airport,
(iii) production in the press, radio, television, cinematographic, postal or telecommunications industries,
(iv) the provision of ambulance, fire and civil protection services,
(v) the production, transmission or distribution of gas, water or electricity,
(vi) the collection of household refuse or the operation of an incineration plant,
(vii) any industrial activity in which work cannot, by reason of considerations of a technical nature, be interrupted,
(viii) research and development,
ix) agriculture,
(x) tourism.
GIVEN under my hand, this 30th day of January, 1998.
TOM KITT, T.D.,
Minister for Labour, Trade and Consumer Affairs.
The Complainant did not dispute the assertion that the Respondent came within the scope of S.I. No. 21/1998 for the reason advanced, but submitted that the Respondent was bound to comply with Article 4 of the Statutory Instrument which states: -
- 4.If an employee is not entitled, by reason of the exemption, to the rest period and break referred to in sections 11, 12 and 13 of the Act, the employer shall ensure that the employee has available to himself or herself a rest period and break that, in all the circumstances, can reasonably be regarded as equivalent to the first-mentioned rest period and break.
The Respondent disputed this and submitted that all of its employees were granted rest periods in compliance with the Act.
Position of the Parties:
Complainant’s Case:
The Complainant said in evidence that she regularly worked long shifts without a rest period as provided for in the Act. She occasionally took short smoke breaks but was regularly put under pressure to return from these after a short period of time. On most days she did not receive breaks as provided for in Section 12(1) of the Act nor did she receive compensatory breaks as provided for in S. I. No 21/1998. There was no system in place for staff to take their breaks. She said there was no system in place to record breaks. She said she was advised generally that she should take her breaks, but she was never told go on a break or advised of a time at which she should do so. She said there was no relief system in place to enable her avail of her statutory entitlement to breaks.
Respondent’s Case
The Respondent submitted that it “ensured the provision of breaks were available for the employee”at all times during her employment in the hotel.
The Respondent further said that there is“an onus on the employee to partake of her daily breaks – as evidenced in the employees contract of employment, and specifically at item 14 of the agreed Principal Accountabilities, namely “To comply with statutory and legal requirements for fire, health and safety, licensing and employment.”
The Respondent referred to the note of a meeting between the Head Chef and the Head of Human Resources dated 13th May 2008 “whereby he confirms that the employee at all times received her daily breaks and what is more on occasions left her post in the kitchen to take additional breaks”.
The Respondent noted that the “employee being a frequent smoker, on regular occasions would take additional breaks in order to facilitate her smoking habit”
The Respondent called a former employee to give evidence in support of the Respondent’s claims.
Evidence of Mr Lucas Zalewska: -
In his evidence Mr Lucas Zalewska said he worked in the kitchen with the Complainant. He said that arrangements were made for staff to take breaks when work demands permitted but that the Complainant was not sufficiently organised to take her breaks. He said he noticed her leaving the kitchen on occasions but under cross-examination said he did not know where she went or for how long she was missing from the kitchen. He said he never saw her having a break. He said it was left up to individuals to organise their own breaks. He also said that staff were advised generally to take their breaks by the head chef but that there was no schedule of breaks operated within the kitchen.
Findings of the Court: -
The Court found that the Respondent failed to meet its obligations to the Complainant under Section 12(1) of the Act viz:
- 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.
The exemption to Section 12 of the Act provided by S.I. No. 21/1998 is not absolute in character. Instead it is limited to the extent that an employer, because of the nature of the business, is given some flexibility with regard to the timing of breaks provided for in Section 12. Where the employer avails of such flexibility the employee remains entitled to a break that must be scheduled in such a way as to ensure that “in all the circumstances, can reasonably be regarded as equivalent to the first-mentioned rest period and break”. Section 4 of S.I. 21/1998 states: -
- 4. If an employee is not entitled, by reason of the exemption, to the rest period and break referred to in sections 11, 12 and 13 of the Act, the employer shall ensure that the employee has available to himself or herself a rest period and break that, in all the circumstances, can reasonably be regarded as equivalent to the first-mentioned rest period and break.
Section 25(1) of the Act provides inter alia that an employer is required to keep records“as will show whether the provisions of this Act 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”.
The Respondent advised the Court that it did not have records of breaks taken by the Complainant.
Where an employer does not maintain records in accordance with Section 25(1) of the Act, Section 25(4) provides :-
- 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 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.
The Court is satisfied that the Respondent breached the Complainants rights under Section 12(1) of the Act.
Determination:
In the matter before it the Court has determined that the Respondent breached Section 12(1) of the Act.
The Court is required to follow the decision of the ECJ inVan Colson and Kamann[1984] ECR 1891 when considering awards of compensation.Van Colsonheld that “sanctions for breaches of Community Rights must be effective, proportionate and dissuasive – they must act as a disincentive against future infractions by the employer”.
In all the circumstances of this case and taking into account the nature and extent of the breach of Complainant’s rights under the Act and the Decision of the ECJ inVan Colson and Kamann[1984] ECR 1891the Court awards the Complainant the sum of €5,000.
The Decision of the Rights Commissioner is varied accordingly.
The Court so Determines.
Signed on behalf of the Labour Court
Brendan Hayes
21st June, 2010______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to David P Noonan, Court Secretary.