FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : FERGAL BRODIGAN T/A FB GROUNDWORKS (REPRESENTED BY NIAMH DOYLE & CO SOLICITORS) - AND - ANDIS SLUPSKIS (REPRESENTED BY PC MOORE & CO SOLICITORS) DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. Appeal Of Rights Commissioner's Decision R-061945-wt-08/EH.
BACKGROUND:
2. This case concerns an appeal by the Worker of Rights Commissioner's DecisionR-060483-WT-08/EH.The Worker was employed by the Company from 2nd July, 2007, until 21st December, 2007.The Worker referred a case of alleged infringements of the Organisation of Working Time Act, 1997, to a Rights Commissioner for investigation and a hearing was arranged for 15th July, 2008. The Rights Commissioner's Decision was as follows:
- "As per Sec 27 (3) (a) of the Act I have decided that the claim is well founded in part.
I require the employer to pay Andis Slupskis compensation of €1,750 to be paid within six weeks of the date below."
The Worker appealed this Decision to the Labour Court on 25th July, 2007, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 10th October, 2008.- "As per Sec 27 (3) (a) of the Act I have decided that the claim is well founded in part.
DETERMINATION:
This is an appeal made under the Organisation of Working Time Act, 1997, in a claim against Fergal Brodigan T/A F.B.Groundworks. Mr Andis Slupskis alleged a number of contraventions of the Act including the payment of overtime, payment of holidays and public holidays and payment for work. The Rights Commissioner accepted that the Complainant had not received his full entitlements in respect to holidays. He noted, however, that a separate claim in respect of the amounts due and owing under this head was being pursued under the Payment of Wages Act 1991. Consequently, the Rights Commissioner made no order in respect of that aspect of the claim and it is not now an issue for this Court. The Rights Commissioner found that there had been a contravention of Section 12 of the Act in relation to the provision of breaks. He found that the other aspects of the claim were not well-founded.
The Complainant appealed against so much of the Decision as found that his complaints under the Act of 1997 were not well-founded.
In this Determination the parties are referred to as they were in the first instance consequently Mr Andis Slupskis is referred to as the Complainant and Mr Brodigan as the Respondent.
This case was heard in conjunction with two other appeals by a former colleague of the Complainant, Mr Juris Dubina. Those appeals were against the Decision of a Rights Commissioner in complaints brought by Mr Dubina against the Respondent herein pursuant to the Safety Health & Welfare at Work Act, 2005, and the Organisation of Working Time Act, 1997.
Complainant’s Case:
The Complainant told the Court that he started work for the Respondent in July 2007. He would normally begin work on site at approximately 7am and finished at 5pm. He had to attend at the Respondent's yard at 6am to be transported to work by bus. He said that during the course of the working day he received one break and sometimes two. His normal working day could finish at 5pm, 5:30pm or 6pm. He was then transported back to the yard. He told the Court he did not receive payslips. He also told the Court he was not paid for public holidays, of which there were two during the course of his employment. He finished working with the Respondent in the last week of December 2007.
Respondent’s Case:
The evidence given on behalf of the Respondent, as it relates to the instant case, was identical to that recited in the Determination of this Court in the appeal against the Decision of a Rights Commissioner in the case of Juris Dubina against the Respondent herein (WTC/08/105).That evidence was as follows: -
Evidence of the Respondent
Mr Fergal Brodigan, who is Managing Director of the firm, gave evidence before the Court. He said that the business was contracted to provide groundwork services to Dun Laoghaire-Rathdown County Council. He said that the work involved repairs to roads and footpaths and the laying of drains. At the time material to this claim there were eleven employees in the firm. The workforce was divided into “gangs” each of which was led by a foreman or ganger. He said that the workers were transported to their work location in a minibus owned by the firm. Workers called to the yard of the business between 6am and 6:30am daily and were transported to work. The minibus collected some employees on route. He told the Court that the travel time was approximately 45 minutes and the employees normally commenced work between 7-7:30am. At all times employees worked an 8-hour day and generally finished work between 3:15-3:30pm. The witness said that they would be back in the yard by 4pm or 4:30pm.
The witness told the Court that it was a condition of his contract that works would be finished by 4pm in the evening so as to avoid adverse impact on traffic. He said that he attended on the site for approximately four days of the week and so was aware of the hours which the employees worked.
In cross-examination the witness told the Court that he was instructed to finish work before 4pm by his Client's engineer. He accepted that he had not asked this person to attend the hearing and give evidence. He also agreed that he did not have any documents in Court which would corroborate his evidence.
With regards to breaks, the witness told the Court that the nature of the work meant there was a degree of flexibility in the taking of breaks. Normally it was a matter for the foremen to decide when the breaks would be taken but breaks were taken with a break in the morning between 9-10am and a further lunchtime break between noon and 1pm. The witness agreed that they did not maintain records of breaks or working hours at the material time.
Evidence of Mr Dermot Brodigan.
This witness is a ganger with the Respondent and is in charge of a group of employees. He said that normally breaks were taken when it suited the requirements of the work. There were two breaks per day, one of between 10-15 minutes in the morning between 9am and 10am. Another break was taken of between 30-45 mins between midday and 1pm. He told the Court that he worked with the Complainant for approximately for one month and the arrangements which he had outlined to the Court applied during that period.
This witness told the Court that he always obtained pay slips from the Respondent.
Evidence of Mr David Keelan
Mr David Keelan gave evidence to the Court. He told the Court that he was next in line to a foreman with the Respondent and had been employed by the Respondent for approx five years and he worked with the Complainant for a number of days during his period of employment. He said the normal arrangements within the employment were that employees began work around 7am and would finish at between 3pm and 3:15pm. He said it was normal practice for employees to take breaks in the mornings and again after mid-day but that the taking of breaks was flexible depending on the type of work being performed.
Evidence of Mr Joe Williamson
Mr Joe Williamson gave evidence before the Court. He is General Manager for the Respondent. He is responsible for co-ordinating sales and invoicing and he is also responsible for payment of wages to the staff. He said staff were paid each Friday in cash. Their pay is placed in a sealed envelope together with their payslip and handed to them. This was always the case with the Complainant.
Failure to maintain records
The Respondent accepts that he did not maintain records showing compliance with the Act. Section 25(4) of the Act provides that where records are not maintained in the prescribed form the onus of proving, in proceedings before a Rights Commissioner and this Court, that the provisions of the Act have been complied with rests with the employer. This provision is clearly applicable in this case. It is thus for the Respondent to satisfy the Court, on the balance of probabilities, that the contraventions alleged by the Complainant did not occur.
Conclusions of the Court:
In this case the appeal was taken by the Complainant and no cross-appeal was taken by the Respondent. However the case was run before the Court on the basis that all issues of fact and law were put in issue in thisde novohearing. In these circumstances the Court is obligated to evaluate all of the evidence adduced before it and to arrive at its own decision on the question of whether or not the Act was contravened in relation to the Complainant.
The Court has concluded that the evidence given on behalf of the Respondent is substantially correct and is to be preferred to the evidence given by the Complainant herein. In the circumstances the Court is convinced that the Act was not contravened in relation to the Complainant. Accordingly it must conclude that his complaints are not well founded.
Accordingly, the entirety of the Rights Commissioner's Decision is set aside and is substituted with a finding that the complaints made by the Complainant are not well-founded.
Signed on behalf of the Labour Court
Kevin Duffy
10th December, 2008______________________
JMcCChairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.