FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : BRIDFORD PROPERTIES LTD (REPRESENTED BY NOEL SMYTH & PARTNERS) - AND - GINTAS SMILGYS (REPRESENTED BY PC MOORE AND CO) DIVISION : Chairman: Mr McGee Employer Member: Mr Grier Worker Member: Mr O'Neill |
1. Appeal against a Rights Commissioner's Decision R-056332-WT-07/RG.
BACKGROUND:
2. The Worker concerned was employed by the Company for two periods, from 5th March 2005 to May 2006 and again from September 2006 until the 24th June, 2007.
The Worker claims that he did not receive the correct rest breaks during the working day and on occasion did not receive an 11 hour break between start and finishing times. He also maintains that he was working in excess of forty-eight hours a week.
The claim was referred to a Rights Commissioner for investigation. Her decision issued on the 7th February, 2008, in which she found that the complaint was well founded. She awarded the Claimant the sum of €1,000 for breach of legislation and €862.68 in respect of annual leave due.
The Worker appealed the Rights Commissioner's decision to the Labour Court on the 20th February, 2008, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. The Worker claimed that the compensation awarded by the Rights Commissioner was insufficient. The Court heard the appeal on the 2nd May, 2008.
WORKER'S ARGUMENTS:
3. 1.The Worker maintains that he only received one break of between 30-45 minutes each day. He further maintains that during the PGA Tour he only received a 6-hour break between start and finish times.
2. The Worker contends that at the Rights Commissioner's hearing the Employer admitted that the Worker was working in excess of 48-hour per week and that he requested the overtime. There is no documentation to support this.
3. The Worker contends that the Employer is unable to produce any records showing that the Worker took holidays and that he was also underpaid holiday pay.
COMPANY'S ARGUMENTS:
4. 1. The Company maintains that the Worker received a rest break of 45 minutes each day between 12 noon and 1pm. A fifteen minute break was taken between 10am and 11am each day. No records of breaks or rest periods were kept.
2. The Company stated that the Worker did in fact sometimes work seven days a week at peak periods, that he was at all times aware of the fact that overtime was completely voluntary and he was in no way penalised for not taking up any offer of overtime.
3. The Company maintains that the Worker was paid any holiday pay to which he was entitled.
DETERMINATION:
The Court has considered the submission of the parties. The Court also heard direct evidence from both the Claimant and the Course Superintendent (his direct supervisor) regarding
- the taking of breaks
- the taking of holidays
- rest periods
- hours of work
- notice of overtime.
Most of the evidence was directly contradictory.
The Court has established that the Claimant had a 45-minute lunchbreak, generally had a morning break and did not have any breaks after lunch or when working overtime. He took and was paid for 13 days' holidays, a shortfall of 96.93 hours (this is admitted). For an eight-week period, it is admitted that he worked more than 48 hours per week on average. He occasionally did not receive 11 hours rest between periods of work. It is the Court's view that hours of work and liability for overtime were displayed.
No records of breaks, or of rest periods were kept by the Company.
In all the circumstances, the Court dismisses the appeal and confirms the decision of the Rights Commissioner.
Signed on behalf of the Labour Court
Raymond McGee
23rd May, 2008______________________
MG.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.