FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : GERARD KEARNEY (REPRESENTED BY MULVEY KENNY & CO SOLICITORS) - AND - CESLOVAS GRAZEVICIUS (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Ms Ni Mhurchu |
1. Appeal of a Rights Commissioner’s Decision R-073185-WT-08/GC.
BACKGROUND:
2. The Worker was employed by the Company as a construction worker from June 2006 until the termination of his employment in September 2008.
The Worker is claiming that he worked an average 48-hour week. He is also claiming that he did not receive notification of overtime, did not receive adequate breaks and did not receive the holiday pay due to him for the year 2008 up to the time of cessation of employment.
The complaint was referred to a Rights Commission for investigation. Her decision issued on the 29th May, 2009, in which she found that :-
"Based on the uncontested evidence and submissions I find the claimant's case is well founded in respect of maximum working hours and compensation for annual leave entitlements. I require the respondent to pay the claimant the sum of €1,400 compensation."
The respondent did not attend the hearing nor send a representative.
The Worker appealed the Rights Commissioner's decision to the Labour Court on the 9th June 2009, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. The Court heard the appeal on the 23rd September 2009.
WORKER'S ARGUMENTS:
3. 1.The Worker maintains that he worked in excess of 50 hours per week and did not receive any holiday pay for the year 2008.
COMPANY'S ARGUMENTS:
4. 1.The Company denied that the Worker worked excessive hours.
2. The Company maintains further that the Worker received all paid holiday entitlements due to him in 2008.
DETERMINATION:
The Claimant’s employment with the respondent commenced on 1st June 2006 and terminated on 12th September 2008. On 26th November 2008, he presented a complaint to a Rights Commissioner pursuant to section 27 of the Act claiming redress in respect of alleged infringements of his statutory rights in relation to meal breaks, maximum working hours, notification of overtime working and annual leave entitlements, pursuant to sections 12, 15, 17 and 19 of the Act. For reasons outlined to the Court, the Employer did not attend the Rights Commissioner’s hearing. Based on the Claimant’s uncontested evidence the Rights Commissioner found that the complaints made under sections 15 and 19 were well founded and awarded the sum of €1,400 compensation. It is against this finding that the Claimant appealed the Rights Commissioner’s decision.
The Scope of the Complaint.
Ms. Aoife Marrinan, B.L. on behalf of the Claimant confirmed for the Court that no application was made to the Rights Commissioner under section 27(5) to extend the time limit permitted by the Act. Therefore, the Court will examine the complaints presented within the time limit prescribed by section 27(4) of the Act, i.e. the six-month period from 27th May 2008 until the date of claim. However, it is necessary to examine the complaint under section 19 in respect of the leave year 1st April 2008 to the date of his termination of employment on 12th September 2008, in order to ascertain if he has received his full entitlement to annual leave for the period from 27th May to 12th September 2008. During that period he built up an entitlement to 9 days annual leave.
Claim under Section 19: failure to grant annual leave.
Mr. John Curran, B.L. on behalf of the Respondent disputed the Claimant’s contention that he had not received his entitlement to annual leave under the Act and produced details of the annual leave taken. The records show that the Claimant received annual leave from 22nd May to 14th June 2008, a period of 16 days. Furthermore, the records show that he was paid for these days. Therefore, the Court does not find that the complaint under section 19 of the Act is well founded.
Claim under Section 12: failure to provide appropriate daily rest breaks
Mr. Grazevicius in his witness testimony accepted that he received a break each day between 10.00am - 10.30am and a further break between 1.00pm - 1.30pm. This evidence complied with the Respondent’s evidence concerning the number and timing of breaks, he also asserted that a longer break was given on Fridays to allow time off to cash pay cheques. Therefore, the Court is satisfied that a total of 60 minutes break was given within a period of 6 hours work, which is in excess of the statutory requirement stipulated under section 12 of the Act, therefore, the Court does not find that the complaint under section 12 of the Act is well founded.
Claim under Section 15:work in excess of the maximum weekly hours
Section 15 of the Act prohibits an employer from permitting an employee to work more than an average of 48 hours calculated over a reference period of 4 months. It follows therefore that the cognisable period for the purpose of this section is the period from 13th May to 12th September 2008.
Ms. Marrinan, B.L. submitted that the Employer was in breach of section 15 of the Act as the Claimant was required to work in excess of 48 hours on average per week.
Mr. Grazevicius in his witness testimony told the Court that he worked from 7.30am until 6.00pm (sometimes longer up to 7.30pm) and worked on average 3 Saturdays per month from 7.30am until 2.00pm/3.00pm.
Mr. Gerard Kearney (the Respondent) in his evidence stated that the Claimant commenced work at 7.30am in the summer and at 8.00am in the winter, he said that the finishing time varied from 4.00pm to 6.00pm. He disputed the number of Saturday’s worked and stated that it was unusual to work on Saturdays. Saturday work was only carried out on the instructions of the contractor to dismantle equipment, it happened on average 5 – 6 times per year. In those circumstances he asserted that the Worker would only be required to work a few hours on that day. Having examined the records the Court is satisfied that no Saturdays were worked in the relevant period covered by the claim.
Having examined the submissions, the witnesses’ evidence and the records produced for the Court, it is satisfied that the Claimant did not work in excess of 48 hours on average per week during the period in question. Despite the conflict in evidence given in relation to the start and finish times, as the records show that the Claimant was out for a total of 22 days during this period, the Court is satisfied that he did not work in excess of 48 hours on average during the 4 month reference period. Consequently, the Employer was not in breach of section 15 of the Act.
Claim under Section 17: failure to notify additional hours of work
Ms. Marrinan, B.L. submitted that the Employer was in breach of section 17 of the Act as it failed to notify the Claimant of additional hours work in accordance with Section 17.
The Respondent told the Court that when the Contractor on site required work to be carried out on Saturdays he notified the workers as soon as possible and looked for volunteers. While the Respondent stated that this situation could happen anytime from Wednesdays onwards, the Court is satisfied from the evidence given by both sides that it mostly happened at some during the day on Fridays. The Court is satisfied that the requirement to work additional hours arose only on Saturdays and there was no requirement to work any Saturdays between May and September 2008.
Accordingly, the Court finds that the Respondent did not breach Section 17 of the Act.
Determination
The Court determines that the Respondent did not breach Section 12, 15, 17, or 19, of the Act and accordingly overturns the decision of the Rights Commissioner and dismisses the Claimant’s appeal.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
20th November, 2009______________________
MG.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.