FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : MEAGHERS TASTY BREAD - AND - GREG ECCLES DIVISION : Chairman: Mr McGee Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioner's Decision R-051126-Wt-07/Tb
BACKGROUND:
2. This case concerns an appeal by the employer of Rights Commissioner's Decision R-051126-Wt-07/Tb. The issue in dispute concerns a claim by a former employee of Meagher's Tasty Bread that he was not provided with adequate breaks, Rest Breaks, Sunday Premium nor the correct Annual Leave entitlements under the Organisation of Working Time Act, 1997.
He also claims to have worked in excess of the statutory maximum of 48 hours per week. The employer's position is that all entitlements were paid to the worker. The employer further contends that the worker was the manager of his particular shift and was responsible for ensuring that he took appropriate breaks.
The dispute was referred to a Rights Commissioner for investigation. His Decision issued on 12th September, 2007 and found, on the uncontested evidence of the worker that, there were breachesunder the Organisation of Working Time Act, 1997 in respect of Sunday Premium, Annual Leave, Rest Breaks and average hours worked in excess of 48 per week. The Rights Commissioner awarded €3000 compensation to the worker.
On the 23rd October 2007, the employer appealed the decision of the Rights Commissioner in accordance with Section 28(1) of the Organisation of Working TimeAct, 1997. A Labour Court hearing took place on 14th February, 2008.
WORKER'S ARGUMENTS:
3 1 The worker was not provided with adequate rest breaks under theOrganisation of Working Time Act, 1997. His shift began at 7.30pm and finished at 6.30am. It is the responsibility of the employer to ensure that staff take the correct breaks.
2 There was no Sunday Premium paid for working on Sundays nor were the correct annual leave entitlements applied. These are clear breaches of the Act.
3 The worker was frequently required to work in excess of the statutory maximum of 48 hours per week. There was also no overtime paid for the extra hours worked.
COMPANY'S ARGUMENTS:
4 1 The worker was responsible for ensuring the correct breaks were taken as he was managing the shifts in question.
2 Overtime and other premia did not apply as the manager was paid a salary instead of an hourly wage.
3 An official Inspection of the Companys records by the Labour Inspectorate of the Department of Enterprise Trade and Employment was satisfactorily concluded and no breaches were identified at the time.
DETERMINATION:
The Court has considered the submissions made by the parties both at, and subsequent to, the hearing. The Court has also examined such records as have been submitted by the employer.
The Court finds that the Claimant received his holiday entitlement, that it was in his control as night manager to ensure that he received proper breaks, and that he did not work, on average, hours in excess of 48 per week. The Court upholds the appeal on these matters.
The Court finds that no Sunday Premium was paid in respect of approximately ten Sundays and worked and awards the Claimant €1000 under this heading. The Court also finds that the employer failed to keep proper and adequate records and awards the Claimant €600 in compensation, making a total of €1600.
The Court so Determines, and varies the decision of the Rights Commissioners accordingly.
Signed on behalf of the Labour Court
Raymond McGee
7th May 08______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.
WTC/07/79DETERMINATION NO. DWT0817
SECTION 39(2), ORGANISATION OF WORKING TIME ACT, 1997
PARTIES:
MEAGHERS TASTY BREAD
-AND-
GREG ECCLES
-AND-
GREG ECCLES
SUBJECT:
1. Appeal of Rights Commissioner’s Decision r-051126-wt-07/TB.
BACKGROUND:
2. An application has been made by the employee that Determination No. DWT0817 does not correctly state the name and address of the employer, the correct name and address being Meaghers Tasty Bread Limited, Unit 22 Finglas Business Centre, Finglas, Dublin 11.
DETERMINATION
In exercise of its powers under Section 39(2) of the Organisation of Working Time Act, 1997 the Court determines that the name of the employer in Determination No. DWT0817 shall be changed from Meaghers Tasty Bread, Unit 22 Finglas Business Centre, Finglas, Dublin 11, to Meaghers Tasty Bread Limited,Unit 22 Finglas Business Centre, Finglas, Dublin 11.
Signed on behalf of the Labour Court
- 14th April , 2009 ________________________
Raymond McGee
Deputy Chairman