SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
(REPRESENTED BY CASEY & CO SOLICITORS)
- AND -
Chairman: Mr McGee
Employer Member: Mr Pierce
Worker Member: Mr Nash
1. Appeal of Rights Commissioners Decision WT19901/04/JC
2. The worker commenced employment as a potato picker/farm worker on his employers farm from July/August 2003, until the termination of his employment in April 2004. The worker claims that he did not receive the rest periods to which he was entitled under the Act, that his average working week was in excess of that permitted under the Act, that he did not receive payment as provided in the Act in respect of Public holidays and that he did not receive his paid annual leave entitlements. The employer rejects the claims.
- The matter was referred to a Rights Commissioner for investigation and recommendation.His findings and recommendation issued on the 11th March, 2005, as follows:
“The respondent kept no records of any of the hours worked by the claimant. The respondent did not give the claimant a statement of the terms and conditions of employment or pay slips. On the basis of the copy of the P45 provided by the respondent I have taken the 16th April 2004 as the date of termination of the employment.
The provisions of the Organisation of Working Time Act are aimed at protecting the health and safety of employees and the onus is on the employer to ensure that the worker receives all of his or her entitlements in relation to paid annual leave, adequate rest periods and length of the working week. The legislation requires the employer to keep records that show whether the provisions of the Act are being complied with in relation to the employee. However in this case the employer kept no records as required by the Act. The absence of such records should not militate against the claimant.
On the basis of the evidence presented I find that the claim is well founded and require the respondent to pay the claimant compensation as follows:
- Annual Leave- I find that the claim was lodged within 6 months of the latest date on which the employer could have lawfully granted the paid annual leave due to the claimant in respect of leave year ending on 31st March 2004. I find that at that date the claimant was entitled to a total of 220 hours annual leave in respect of leave year 2003/2004. In regard to the period from 1st April up to 16th April 2004 I find that the claimant was entitled to a total of 16 hours. His total annual leave entitlement was 236 hours.
I require the respondent to pay the claimant compensation in the sum of €1652 in respect of his annual leave entitlements.
- Public Holidays- In respect of Public Holiday entitlements I find that the claimant's entitlements commence with effect 29th November 2003 i.e six months prior to the date the claim was presented to the Rights Commissioner. I find that his entitlements cover 25th, 26th December 2003, 1st January 2004, 17th March 2004 and 12th April 2004. I require the respondent to pay the claimant compensation in the sum of €439.
- Weekly Working Hours- I find that the claimant worked an average working week in excess of the hours permitted under Section 15 of the Act. I require the respondent to pay the claimant compensation in the sum of €1000
- Weekly Rest Period- I find that the claimant did not receive his entitlements under Section 13 of the Act. I require the respondent to pay the claimant compensation in the sum of €800
- Daily Rest Period- I find that the claimant did not have an 11-hour rest period in each 24-hour period, contrary to Section 11 of the Act. I require the respondent to pay the claimant compensation in the sum of €500.
The total sum of €4,391 compensation to be paid by the respondent to the claimant within 6 weeks of the date of this decision".
The worker was named in the Rights Commissioner’s Recommendation.
On the 19th April, 2005, the Employer appealed the Rights Commissioner’s Recommendation to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 20th July, 2005.
4. 1. While the first contact between the the Employer and the worker took place in July 2003, the worker did not properly take up employment until September 2003 and that period cannot therefore fall to be considered under the legislation for payment of Annual Leave.
2. The method for calculating payment in respect of Public Holidays under the Act is, that a sum equal to a normal daily rate for hours worked prior to the Public Holiday is paid. The method laid down by the legislation was not used by the Right's Commissioner.
3. The Employer claims that the worker worked 40-45 hours per week. The hours should be calculable in accordance with Section 15(b) of the Act taking into account the seasonal nature of agricultural work. The Employer contends that a continual working week in excess of 40-45 hours per week would be near impossible taking into account the nature of the agricultural business and weather constraints.
4. Under the Act, certain persons are prescribed as exempt from Section 11 subject to being granted the equivalent compensatory rest, under the Act's regulations 1998 SI 20, 21, 52. The Employer contends that in light of weather constraints and in conjunction with local Teagasc Advisors equivalent compensatory rest was provided and therefore there was no breach of Section 11. This also pertains to the weekly rest periods.
3. 1. The worker's position was that, with few exceptions that he identified, he worked every day of the week with no day off. He said that his hours were from 7am to 11pm and that his working day ranged from 12 to 14 hours.
2. He claims he would receive approximately one 15 to 30 Minute break in the day. He claims that he received no overtime payments and that his weekly pay was reduced on the few occasions he had a rest day in the week.
3. He worked on Christmas day, St. Stephens day, New Years Day and St. Patricks day as well as Easter Monday.
Having considered the submissions, oral and written, made by the parties, the Court considers that
- (a) neither Party's evidence was wholly convincing
(b) the claims of hours worked by the claimant are of an exaggerated nature.
- Annual Leave: - His Annual Leave entitlement should be 171 hours and his compensation should be €1,200
Public Holidays: - His compensation should be reduced to €350
Weekly Working Hours, Weekly Rest Period, Daily Rest Period: -
The total compensation under these headings should be €1,500Accordingly, the total compensation due to the claimant is €3,050.
The Court so determines.
Signed on behalf of the Labour Court
10th October, 2005______________________
Enquiries concerning this Determination should be addressed to Joanne O'Connor, Court Secretary.