SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
DHL EXPRESS IRELAND LTD
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
Chairman: Ms Jenkinson
Employer Member: Mr Grier
Worker Member: Mr Nash
1. Appeal against Rights Commissioner's Decision R-031443-WT-04/JC.
2. The case before the Court concerns an appeal by the employee of Rights Commissioners Decision R-031443-WT-04/JC.
The matter in dispute relates to a claim by the employee that he was not paid the appropriate unsocial hours and overtime premia.
The matter was referred to a Rights Commissioner who issued her decision on the 16th June 2005 that the issue of overtime and unsocial hours premia had already been dealt with by the Labour Court in Recommendation LCR17984. In relation to unsocial hours premia, the Organisation of Working Time Act, 1997, refers only to Sunday Work which was not relevant in this case. The Rights Commissioner outlined that there was no breach of the Organisation of Working Time Act in relation to the number of hours worked.
On the 28th June, 2005, the worker appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 18th November, 2005.
3. 1. The correct overtime and unsocial hours premia have not been paid. It is unacceptable that the worker incurs a loss of earnings as a result of a breach of legislation by the employer.
4. 1. The Claimant has brought this issue to the Labour Court on a previous occasion and has not been successful. The claim was then brought to a Rights Commissioner who also found in favour of the Company. The employer has not breached the Organisation of Working Time Act 1997 and the claim as presented is not valid.
A complaint was presented to a Rights Commissioner by the worker on 24th November, 2004, pursuant to Section 27 of the Organisation of Working Time Act, 1997 (the Act). He complained that the respondent failed to pay him unsocial hours premium for hours worked in excess of the norm.
A Rights Commissioner hearing was held on 12th April, 2005. The Rights Commissioner found that the complaint did not come within the provisions of the Organisation of Working Time Act, 1997, and that the complaint in relation to payment for unsocial hours and overtime was the same claim dealt with by the Labour Court in Recommendation No: 17984 and was accordingly outside her jurisdiction. Furthermore, the Rights Commissioner found that the working hours of the Appellant were not in breach of the provisions of Section 15 of the Act. It is against that decision that the Appellant appealed to the Court.
The Court has considered the employee's appeal of the Rights Commissioner's recommendation. The Appellant adduced no new grounds to substantiate a breach by the employer of any of the provisions of the Act and when questioned by the Court was unable to point to any such breach of the legislation.
The Court noted that the Act does not provide for unsocial payments in excess of normal working hours, other than in respect of hours worked on Sunday and the Appellant does not work on Sundays. Therefore, the Court is satisfied that the employer did not breach the terms of the Act.
It was pointed out to the Appellant that the claim taken under Section 20(1) of the Industrial Relations Act, 1969 is binding on the party referring the claim and consequently he was bound by the terms of Labour Court Recommendation No:17984.
The decision of the Rights Commissioner is affirmed and the appeal is disallowed.
Signed on behalf of the Labour Court
20th December, 2005______________________
Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.