SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
BORD NA MONA ENERGY LTD
- AND -
(REPRESENTED BY O'CONNELL & CLARKE SOLICITORS)
Chairman: Mr McGee
Employer Member: Mr Grier
Worker Member: Ms Ni Mhurchu
1. Appeal against Rights Commissioner's Decision R-031608-MA-04.
2. The worker concerned is a 55-year old man who has been employed as a seasonal train/locomotive driver by the Company for a period of 13 years.
The issue before the Court is a) a claim for payment for rest breaks which the worker claims he is not permitted to take. The worker claims that the Employer has deducted pay for these rest periods. The Company claim that the worker was made aware of when he could take his breaks, a paid ten minute tea break and an unpaid 30 minute lunch break to be taken between scheduled tours. The worker is also claiming b) that he has been victimised. He claims that since he made his Employer aware of this complaints he has been treated less favourably than his co-workers. The Company denies victimising the worker.
The issue was referred to a Rights Commissioner for investigation. Her decision issued on the 26th September, 2005, in which she was not satisfied that the Employer had complied with the Organisation of Working Time Act and awarded the worker €2,000.00 in respect of breaches of Sections 6(1) and (2) of the Act. Furthermore the Rights Commissioner considered that the worker was entitled to some compensation in regard to his complaint of bullying and awarded him €2,000 in settlement of that aspect of his complaint.
The Company appealed the Rights Commissioner's Decision to the Labour Court on the 7th November, 2005, in accordance with Section 28(1) of the Organisation of Working time Act, 1997. The Court heard the appeal on the 13th June, 2006, the earliest date suitable to the parties.
3. 1.When the worker is required to attend work from 9.30 am to 6.00 pm he is paid an 8 hour basic day with an unpaid lunch break of 30 minutes.
2. It could happen occasionally that no lunch break would be taken if things were not going according to schedule.
3. The Managers claim that at no time was the worker denied his rest breaks.
4. The intention of any correspondence sent to the worker was to point out that the internally agreed procedures to facilitate the resolution of employee grievances had not been exhausted.
4. 1.The worker has been paid less than his co-workers as he has been deducted pay for rest periods which he has not been permitted to take.
2. The Employer does not keep appropriate records to demonstrate that the worker is permitted the appropriate breaks.
3. The Union claim that the Employer has repeatedly expressed frustration and animosity towards the worker in pursuit of his various complaints.
The Court, having considered the submissions of the parties, decides as follows:-
The Company in its appeal of the Rights Commissioner's Decision advanced no new arguments which could persuade the Court other than that in the absence of appropriate records the Employer failed to comply with all aspects of the Organisation of Working Time Act, 1997. The Court upholds the Decision of the Rights Commissioner in regard to this aspect.
Having considered the correspondence between the company and the claimant (and his representative) and taking into account the allegations made by the claimant, the Court does not consider that there is sufficient evidence to sustain a claim of victimisation under the Act. The Court accordingly upholds the appeal and overturns the Decision of the Rights Commissioner on this complaint.
Signed on behalf of the Labour Court
5th July, 2006______________________
Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.