SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
GEORGE D O'MALLEY
- AND -
(REPRESENTED BY P.C. MOORE & CO.)
Chairman: Mr Duffy
Employer Member: Mr Doherty
Worker Member: Ms Ni Mhurchu
1. Appeal Against Rights Commissioner's Decision R-041957-Wt-06/Tb
2. The claimant was employed as a Plasterer by the Respondent Company from the 11th of September 2005 to the 21st of February 2006. The worker made a claim to the Rights Commissioner for investigation under various legislation including the Organisation of Working Time Act, 1997. The respondent did not attend the Rights Commissioner hearing. The Rights Commissioner issued his decision on the 19th of September, 2006 in respect of the Organisation of Working Time Act, as follows:
"Based on the uncontested evidence of the claimant I uphold the various complaints, which he makes and I award him €2,000 in compensation"
The worker appealed the decision to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997, on the grounds that the level of the award was insufficient. A Labour Court hearing took place on the 8th of February 2007.
3. 1. The claimant worked excessive hours in contravention of Section 15 of the Organisation of Working Time Act, 1997.
2. The worker was not granted adequate daily rest periods in accordance with Sections 11 and 12 of the Act.
3. He was occasionally required to work up to seven days a week. The appropriate rest periods were not granted when he was required to do so, in breach of Section 13 of the Act.
4. The worker was not adequately paid for annual leave, in breach of Section 19 and for Public Holidays in breach of Section 21 of the Act.
5. The employer failed to maintain records of the claimant's working time as required by the Organisation of Working Time (Records) (Prescribed Form and Exemptions) Regulations 2001.
4. 1. The employee worked a forty-hour and five day week.
2. The claimant was not employed as a plasterer but as a general operative and received the correct rate accordingly.
3. The employee received holiday pay for Christmas 2005.
4. The accounts were incomplete for that period due to the illness of the company's accountant.
This case came before the Court by way of an appeal by the Claimant from a decision of a Rights Commissioner awarding him €2,000 in respect of certain infringements of the Organisation of Working Time Act 1997. Specifically the Complainant alleges that he was not provided with daily or weekly rest in accordance with Sections 11,12 and 13 of the Organisation of Working Time Act 1997 (Act) and that he was required to work in excess of the maximum weekly hours specified by s 15 of the Act. He further alleges that he was not provided with adequate annual leave in terms of s 19 of the Act and / or compensation on cessor of his employment in terms of s 23 of the Act. It is also alleged that the Complainant did not receive a benefit in respect of Public Holidays in terms of s 21 of the Act.
The Complainant was referred to a Rights Commissioner pursuant to s 27 of the Act. The Respondent failed to attend the hearing before the Rights Commissioner. The Rights Commissioner proceeded to find for the Complainant and to award his compensation in the amount of €2000 in respect of the infraction of the Act which the Rights Commissioner found to have occurred.
The Complainant appealed to this Court against the quantum of compensation awarded.
Position of the parties
The Court was told that the Claimant had written to the Respondent seeking details of his terms of employment, including his hours of work and rate of pay. The Claimant had also sought a P60 and a P45 following the termination of his employment. No response had been received from the Respondent. It was the Claimant’s case that he was employed as a Plasterer by the Respondent and should have received the rate applicable to a Craftsman under the Registered Agreement for the Construction Industry.
It was submitted that the compensation awarded by the Rights Commissioner did not adequately compensate for the various contraventions of the Act which had occurred and did not contain a sufficient deterrent element against future infractions.
The Claimant gave evidence before the Court in which he said that he worked in helping plasterers and did some plastering himself. He commenced employment with the Respondent on 11th September 2005 and finished on 21st February 2006. He said that he started work at 8am and generally finished between 6pm or 7pm. The Claimant told the Court that he worked on many Saturdays and on some Sundays. He said that he was paid €90 per day net. He did not receive premium pay for working on Sundays or overtime rates. The Complainant also told the Court that he did not receive pay-slips.
The Complainant received a total €450 in respect of holiday pay during the currency of his employment.
Mr George O’Malley, the Respondent, gave evidence to the Court. He said that the Claimant was employed as a labourer and his pay was in excess of that prescribed in the Registered Agreement for the Construction Industry. He said that the Complainant worked a 40 hour week and if he worked overtime he received extra pay.
The Respondent accepted that he had received a request for particulars of the Claimant’s conditions of employment, to which he had not responded. The Respondent also told the Court that at the time material to this claim he did not maintain records of time worked by employees, including the Claimant.
Conclusions of the Court
The Court is satisfied that the Claimant’s occupation while employed by the Respondent was that of a General Operative and not a Plasterer.
The respondent failed to maintain records in relation to the claimant's working time as is required by S.I. No. 473 of 2001 : Organisation of Working Time (Records) (Prescribed Form and Exemptions) Regulations2001. Section 25(4)of the Act provides, in effect, that where records are not kept in the prescribed form, the onus of proving, in proceedings before this Court, that the provisions of the Act have been complied with in respect of the claimant, rests on the employer. While documents were submitted to the Court after the hearing which related to the wages paid to the claimant they are not records of the type contemplated by the Statutory Regulations.
In this case the Court has heard the evidence of the Claimant and the rebuttal evidence of the Respondent. On balance the Court prefers the evidence of the Claimant and is satisfied that he did work between 11 and 12 hours per day or between 55 or 72 hours per week. This exceeding the maximum hourly working hours permitted by the Act. The Court is further satisfied that the Claimant did not receive appropriate weekly rest in respect of weeks in which he worked on seven days.
The Claimant did not maintain records of the dates on which he worked six or seven days. However the obligation to maintain records is on the Respondent and if he fails to fulfil that obligation he must bear the consequential burden of rebutting the evidence of the Claimant. In this case the Respondent had not rebutted that evidence to the satisfaction of the Court. Accordingly the Court must hold that the Respondent contravened the Act in respect of the matters alleged by the Claimant.
In the absence of any reliable records it is difficult for the Court to calculate with precision the amount of holiday pay due to the Claimant. The Respondent told the Court that the Claimant was paid of the order of €12,000 net over the term of his employment. The Court was not furnished with any details regarding the Claimant’s gross rate. In the period in question the Claimant would have accrued an entitlement to holiday pay based on 8% of his gross pay. There were also four Public Holidays in this period in respect of which the Claimant should have been paid.
It is accepted that the total holiday pay received by the Claimant was €450. This, on a rough calculation, is around 50% of what he was due in respect of annual leave. Based on his net pay he should have received a further €360 at least in respect of Public Holidays.
The Court is further satisfied that the Claimant was persistently required to work hours in excess of the maximum permitted by the Act. He was also deprived of adequate rest breaks.
InEdward James Feeney v Milagros Baquiran 15 E.L.R. 304, this Court made it clear that the provision of the Act, and of the Directive on which it is based, are health and safety imperatives. Here the Court said the following:-
- In Cementation Skanska (Formerly Kavaerner Cementation) v Carroll Labour Court Determination WTC0338 (October 28, 2003 ) this Court stated as follows in relation to the computation of compensation for failure to provide annual leave in accordance with the Act:
- “The obligation to provide annual leave is imposed for health and safety reasons and the right to leave has been characterised as a fundamental social right in European law (see comments of Advocate General Tizzano inR v Secretary of State for Trade and Industry, ex parte Broadcasting, Entertainment Cinematography and Theatre Union I.R.L.R. 559 which were quoted with approval by Lavan J. in the Royal Liver case.In Von Colson and Kamann v Land Nordrhein — Westfalen E.C.R. 1891 the ECJ has made it clear that where such a right is infringed the judicial redress provided should not only compensate for economic loss sustained but must provide a real deterrent against future infractions.”
In the Court's view similar considerations apply in computing compensation for contraventions of ss. 12 and 15 of the Act.
The Claimant was deprived of holiday pay to which he was entitled by law. He was also required to work excessive hours without adequate breaks and so imperil his health and safety at work. The Claimant is a native of a foreign country and was unfamiliar with his rights in Irish law and practice. The Respondent failed to respond to requests from the Claimant (made on the advice of his Solicitor) for information concerning his terms of employment. He was not given a P60 or his P45 at the time these documents should have been furnished. Finally, the Respondent failed to attend before the Rights Commissioner to answer the Claimant’s complaints. While certain explanations were offered for these omissions, the Court does not consider that any of them provide an adequate excuse.
In all the circumstances of this case the Court considers that the compensation awarded by the Rights Commissioner should be increased. The Court determines that the Respondent should pay the Claimant compensation in the amount of €5,000 in respect of all of the infractions of the Act which it has found to have occurred.
The appeal is allowed and the Decision of the Rights Commissioner is varied accordingly.
Signed on behalf of the Labour Court
14th March, 2007______________________
Enquiries concerning this Determination should be addressed to Lisa McCarthy, Court Secretary.