FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : O' SULLIVAN TYRES LTD (REPRESENTED BY HICKEY FITZGERALD SOLICITORS) - AND - RADOSLAW ORLOWSKI DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr O'Neill |
1. Appeal Of Rights Commissioner's Decision R-056683-Wt-07/Di
BACKGROUND:
2. The case before the Court concerns an appeal of a Rights Commissioner's Decision. It is the worker's claim that while employed with the Company he did not receive his full entitlements to breaks and was required to work in excess of 48 hours per week. The worker was employed as a tyre fitter from October, 2004 to November, 2007. The worker contends that during his employment he recieved no set breaks and on occasion received no lunch break. He worked 6 days a week for a period of his employment and it is his claim that he did not get paid overtime that was due to him. The Company disputes the worker's claims that he did not receive the appropriate breaks. It is also the Company's position that he did not work in excess of 48 hours per week and that the worker requested to work a six day week.
The Company appealed the Rights Commissioner's decision to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997 on the 11th March, 2009. The Court heard the Appeal on the 2nd September, 2009.
WORKER'S ARGUMENTS:
3. 1 During his employment the worker received no set breaks. The worker received on average 20 minutes for his lunch break. He did not always receive a break in the morning or the afternoon.
2 The worker during his last 7 months of employment, worked in excess of 48 hours per week. The worker did not request to work 6 days a week.
COMPANY'S ARGUMENTS:
4. 1 The worker received a lunch break every day and a morning break of at least 15 minutes. He also received an afternoon break.
2 The worker requested more hours and wanted to work a sixth day of the week. The Company accommodated this request. He did not work in excess of 48 hours per week.
DETERMINATION:
A complaint was presented to a Rights Commissioner by the worker pursuant to Section 27 of the Organisation of Working Time Act, 1997(the Act). He complained that the respondent failure to provide him with his entitlement to rest breaks in accordance with section 12 and in requiring him to work in excess of the maximum hours permitted under section 15 of the Act.
The Rights Commissioner found that the complaint was well founded and awarded the worker €2500.00 compensation in respect of breaches of the Act.
The Employer appealed the Right’s Commissioner Decision to the Court.
Mr. Seamus Hickey Solicitor for the Employer stated that the Complainant had received his meal breaks in accordance with the provisions of section 12 and held that as the employer’s workshop was open for 53 hours per week, when account was taken of his breaks during the day, it was not possible for the Complainant to have worked in excess of 48 hours per week.
The Employer told the Court that the standard breaks during the day comprised of three breaks, 15 minutes in the morning, 30 minutes lunch break and 15 minutes afternoon break. These breaks were flexible and could be considerably longer on occasions depending on how busy the workshop was.
The Complainant in his evidence accepted that he received meal breaks and accepted that he got as a minimum 30 minutes of breaks within 6 ½ working hours every day. On that basis, the Court is satisfied that he received his rest periods in accordance with the provisions of section 12 (2), therefore the Court finds that no breach of the Act occurred.
The Complainant contended that he worked on average between 48 and 50 hour per week, whereas the Employer held that he worked on average 47 hours per week. However, the Employer was not in a position to produce records at the hearing to substantiate its position.
Mr. Thomas Lynch in his evidence stated that he had been employed with the Respondent in the workshop for 13 years and told the Court that he was absent for two months during part of the time material to this complaint. He stated that the normal hours of the workshop were from 9.00am to 6.00pm Monday to Friday, and from 9.00am to 5.00pm on Saturdays. He said that it was very rare that a worker would be required to work in excess of these hours.
Mr. Jerry McCarthy, who worked for the Respondent in the office for 5 ½ years gave evidence which corroborated Mr. Lynch’s evidence regarding working hours and the rarity of working beyond the workshop’s opening hours. He stated that break times and duration of breaks depended on activity levels in the workshop, however, he was of the view that the net hours worked were normally 8 hours per day Monday to Friday and 7 hours on a Saturday.
Mr. John O’Sullivan, Director in his evidence outlined the standard break times, he held that while there was considerable flexibility in the timing and duration of breaks, that both he and his wife, Mrs. Breda O’Sullivan made strenuous efforts to ensure that all workers received their breaks and they provided both food and canteen facilities to enable breaks to be taken.
It is accepted by both parties that up to May 2009 the Complainant’s normal hours of work were from 9.00am to 6.00pm Monday to Friday, and 9.00am to 5.00pm on Saturdays with one day off in the week and from May 2007 he also worked his day off.
Mr. Hickey contended that with the standard meal breaks the Complainant worked on average 47 hours per week.
While the Complainant admitted that he did receive meal breaks, which varied from time to time, he was of the view that he was entitled to an hour’s break at lunchtime. When examined by the Court he accepted that on average he received a total of approximately one hour’s break per day.
Section 25(4) of the Act provides, in effect, that where an Employer fails to keep records in respect of his or her compliance with a particular provision of the Act in relation to an employee, in proceedings before the Court the onus of proving compliance with that provision lies with the employer. In this case the Court is satisfied that the Employer has failed to maintain adequate records to show that the Act was complied with in respect of the Complainant and thus carries the burden of rebutting the evidence given by the claimant.
With regard to section 15 of the Act, the Court having considered all the evidence as a whole prefers the evidence given by the Respondent and is satisfied that it did not require the Complainant to work in excess of the maximum hours permitted under the Act and thereby finds that no breach occurred.
In all of the circumstances, the Court upholds the appeal under sections 12 and 15 of the Act. Accordingly, the Rights Commissioner’s Recommendation is overturned.
Section 27 of the Act provides that a Rights Commissioner (and by extension the Court on appeal) may investigate a complaint that an employer contravened a“relevant provision”of the Act. The relevant provision for the purpose of that Section are Sections 6(2), 11 to 23, and Section 26.
Section 25 (Record Keeping) is not a relevant provision and consequently the Court has no jurisdiction to investigate any alleged contravention of that Section and/or to award compensation.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
21st September, 2009______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to David P Noonan, Court Secretary.