FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : CRAIGFORT TAVERNS LIMITED TRADING AS KILLASHEE HOUSE HOTEL (REPRESENTED BY ARTHUR E MCMAHON, SOLICITORS) - AND - ANTONIN HUBACEK (REPRESENTED BY POLISH CONSULTANCY ENTERPRISE) DIVISION : Chairman: Mr Hayes Employer Member: Mr Doherty Worker Member: Ms Ni Mhurchu |
1. Appealing against a Rights Commissioner’s Decision R-075450-WT-09/DI
BACKGROUND:
2. The Worker was employed as a Bar Supervisor from the 15th September, 2004, to 24th October, 2008. He made complaints to the Rights Commissioner's Service under Sections 11, 12, 14, 15, 19 and 20 of the Organisation of Working Time Act, 1997, (the Act). The Rights Commissioner's decision was as follows:
"Section 25 of the Act places an obligation on an employer to keep records. Statutory Instrument No. 473 of 2001, the Organisation of Working Time (Records) (Prescribed Form and Exemptions) Regulations 2001 sets down the records that an employer must keep regarding the hours worked in each week by each employee and the employers obligation to keep records relating to breaks and to provide employees with specific information regarding breaks.
The Labour Court in the case of Goode Concrete v Munroe WTC/04/59, the Court determined that the "obligation to provide rest periods is imposed for health and safety reasons. The right of workers to adequate protection of their health and safety in the work place is a fundamental social right in European Law".
Section 25(4) of the Act provides that "where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act" then "the onus of proving, in proceedings before a Rights Commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer".
I find the Claimant's complaint that the Respondent was in breach of Section 12 of the 1997 Act to be well founded. It is not satisfactory for the Respondent to simply assume that because the Claimant was taking smoke breaks he was, therefore, receiving his equivalent rest period and breaks. In order to discharge that duty the Respondent was required to have arrangements in place to ensure that he received his statutory break and rest periods.
I find that the complaint that the Respondent was in breach of Section 11 of the 1997 Act to be well founded. On occasion the Claimant did not receive an 11.00 hour break between the time one shift finished and the next shift commenced.
I am making no finding on the Claimants allegation that the Respondent was in breach of Section 14 of the Act as this complaint was not prosecuted at the hearing. The allegation regarding the non-payment of Sunday premium is a matter that is being referred to NERA for investigation.
I find the Claimant's complaint that the Respondent was in breach of Section 15 of the Act not to well founded. From the information submitted at the hearing I calculated that the Claimant worked, on average, less than 48 hours per week.
I find the Claimant's complaint that the Respondent was in breach of Section 19 of the 1997 Act to be well founded. From the information supplied at the hearing I found that when annual leave entitlement was calculated on the basis of 8% of total hours worked, it resulted in the Claimant having slightly more annual leave entitlement than when annual leave was calculated by reference to 1.67 days annual leave for every qualifying calendar month.
I find the Claimant's complaint that the Respondent was in breach of Section 20 of the Organisation of Working time Act not to be well founded. The breach in this case was technical. It is common practice in both the public and private sector to continue to pay employees on a back week basis throughout periods of annual leave.
Having considered the circumstances of this case I order the Respondent to pay the Claimant the sum of €3,500 in compensation for being in breach of Sections 11, 12, 19 and 20 of the Act.
The Company appealed the decision to the Labour Court on the 25th September, 2009, in accordance with Section 28(1) of the Act. A Labour Court hearing took place on the 9th March, 2010.
COMPANY'S ARGUMENTS:
3. 1.Section 11: daily rest periods -the Rights Commissioner found that the worker did not receive his rest periods only "on occasion".
2.Section 12: rests and intervals at work -the Company put in place procedures to ensure the worker received proper rest periods. He was under instruction to inform his manager if he could not take his breaks.
3.Section 19: annual leave -the difference in mode of calculating holidays was not intended to disadvantage the worker. Any difference that did occur was minimal.
4.Section 20: annual leave payment -The Rights Commissioner found that the breach was technical in nature
WORKER'S ARGUMENTS:
4. 1.Section 11:the worker was not given proper 11-hour rest periods on occasions.
2.Section 12:the worker was not afforded proper 15-minute breaks.
3.Section 19:the worker did not receive his full annual leave entitlements (€107.32 still outstanding).
4.Section 20:the worker was paid during his leave, not beforehand as the Act provides.
DETERMINATION:
1. The Respondent appealed the decision on 21st September, 2009, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. The Labour Court heard the appeal on 9th March, 2010. The parties will be referred to throughout this determination by their original designation before the Rights Commissioner, namely Complainant and Respondent
Preliminary Issue:
2. As a preliminary issue the Respondent appealed against the Rights Commissioners decision to extend the time in which the Complainant might bring his complaint. The complaint had been presented to the Rights Commissioner on 12th February, 2009. The complainant stated that contraventions of the act had occurred throughout his employment and had sought an extension of the time limit for bringing his complaint pursuant to Section 27(5) of the Act in order to bring contraventions which occurred after the 12th of April, 2008, i.e. six months prior to the termination of his employment, within the ambit of his complaint. His employment with the Respondent ended on 24th October, 2008. If the time limit of six months were not extended the Court could only have regard to contraventions found to have occurred on or after 12th August, 2008.
- The Respondent referred to Rezmerita Ltd. And Katarzyna Uciechowska [Determination DWT 1018] where the Labour Court held “ ignorance of ones legal rights, as opposed to the underlying facts giving rise to a complaint, cannot provide a justifiable excuse for a failure to bring a claim in time”. He contended that this was even more so where a complainant is represented and has been advised as to his rights prior to making the relevant claim.
The Complainant contended that he had submitted a complaint to NERA which he understood was the correct process for submitting a claim under the Act. At that point he was not legally advised and being a foreign national he was at a disadvantage with regard to his understanding of Irish legal procedures and processes. He also noted that English was not his native language and that he had difficulty comprehending legal documents. When he realised his mistake he immediately submitted his claim in the proper form to the relevant authorities. At that point he had no legal representation.
Conclusions of the Court on the preliminary issue
3. Section 27(4) provides, in effect, a time limit of six months for the bringing of a complaint under the Act starting from the date of the contravention to which the complaint relates. However Section 27(5) allows the Court to enlarge the time-limit by up to a further 12 months where reasonable cause is shown. The Complainant applied to the Court for an extension of time in accordance with that provision.
4. The test for deciding if reasonable cause is shown for the purpose of the Act was considered by the Court in Cementation Skanska (Formerly Kvaerner Cementation v Carroll Labour Court Determination WTC0338 (October 28, 2003) Here the Court said :-
5. It is the Court’s view that in considering if reasonable cause exists, it is for the Complainant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the Complainant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the Complainant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.
6. The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the Complainant has a good arguable case.
7. In this case Complainant contends that he was unfamiliar with Irish legal procedure and that he operated on the assumption that the National Employment Rights Authority was the appropriate body with which to lodge his complaint. He acted without delay after his employment ended and corrected his mistake as soon as he became aware of his error. The Court is satisfied, that as the Complainant was a foreign national and could not be expected to understand the nature or detail of the process through which his rights could be vindicated and taking account the efforts he made to progress his case through the National Employment Rights Authority and the speed with which he corrected his mistake, reasonable cause has been shown and the time for the bringing of the within complaint should be extended to six months prior to the date of the termination of his employment.
The Substantive Issue
The Evidence:
8. The Respondent admitted that he had not kept proper records as provided for in S.I. No 473 of 2001, the Organisation of Working Time (Records) (Prescribed Form and Exemptions) Regulations 2000. Accordingly, he accepted that, in accordance with the provisions of Section 25 (4) of the Act the onus of proving compliance with his statutory obligation in these proceedings was on him. He admitted that he could not rebut the evidence that the Complainant had not received his statutory rest periods but stated that the Rights Commissioner had found that this breach occurred “on occasions” and argued that this should be taken into account when determining the quantum awarded by the Court.
9. In mitigation of his failure the respondent drew the Court’s attention to the fact that he had since installed a computerised system to track the hours worked and the breaks taken by all employees in his employ and that the application of this system would assist in ensuring that there would be no repetition of such a breach in the future.
10. He also contended that to the best of his knowledge and belief the Complainant took extended breaks during the majority of his shifts during the relevant period. However he admitted that as he did not have records in the required format for the relevant period he could not disprove the assertion made by the Complainant that the Respondent had deprived him of his entitlements under Section 12 of the Act.
11. The Respondent said that the Rights Commissioner had rejected the Claimants assertion that the Respondent was in breach of Section 15 of the Act, by requiring him to work in excess of the statutory working week of 48 hours. He said that this finding was not given sufficient weight by the Rights Commissioner when deciding the level of the award.
12. The Respondent contended that the difference in calculating the holiday entitlement was not intended to disadvantage the Claimant. Though he admitted it did do so, and was in breach of Section 19 of the Act, he contended it was unintentional and minimal.
13. The Respondent contended that the Rights Commissioner noted “it is common practice in both the public and private sector to continue to pay employees on a back week basis throughout periods of annual leave”. Whilst admitting that this practice was a breach of Section 20 of the Act he contended that it was custom and practice in the industry and should be taken into account when determining the level of any award under the Act.
14. The Respondent, referred to Section 27 (3)(c) of the Act which provides that a Rights Commissioner may “… require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances”. He argued that the award made by the Rights Commissioner was excessive.
15. Finally the Respondent referred to the case of Von Colson & Kamann v Land Nordrhein – Westfalen [1984] ECR 1891 and stressed that any award made should be proportionate and appropriate. He contended that the award was excessive and should be reduced.
16. The Complainant said he worked as a Bar Supervisor in the employ of the Respondent from 15th September, 2004, until 24th October, 2008. His work was regulated by an Employment Regulation Order for the Hotel Industry (ERO). He said he was paid on average €448.50 per week and that this was supplemented on average by €45.5 Euro overtime payment each week. He contended this was less that his entitlement under the terms of the ERO.
17. He said he was, mostly at weekends, required by his employer to work as late as 3:15 A.M. and report for work again at 12 mid day on that day. He said he was required to work 14 or 15 hour shifts without breaks as provided for in Section 12 of the Act. He said he was regularly required to work in excess of 48 hours per week. He said his annual leave entitlement and payment was incorrectly calculated and that he was due €107.32 in outstanding holiday pay. He said he did not receive holiday pay in advance of his holidays.
18. He drew the Court's attention to Labour Court Decision DWT047 (The Tribune Printing & Publishing Group and GPMU) in which the Court stated:
19. “The company is under a duty to ensure that the employer receives his equivalent rest period and breaks. Merely stating that the employee could take rest breaks if they wished and not putting in place proper procedures to ensure that the employee receives these breaks, thus protecting his health and safety, does not discharge that duty”.
20. He also drew the Courts attention to it’s determination in DWT 0341 (Cementation Skanska and Stephen Hayes) in which the Court states as follows:
21. The obligation to provide annual leave is imposed for health and safety reasons and the right to leave has been characterised as a fundamental social right in European Law (see comments of Advocate General Tizzano in R v Secretary of State for Trade and Industry, ex parte Broadcasting, Entertainment Cinematography and Theatre Union [2001] IRLR 559 which were quoted with approval by Lavin J in the Royal Liver case. In Van Colson the ECJ has made it clear that where such a right is infringed the judicial redress provided should not only compensate for economic loss sustained but must provide a real deterrent against future infractions.
22. He stated that the Rights Commissioner’s decision was fair and reasonable and asked the Court to affirm it.
The Court's Findings
23. The Respondent has accepted that he failed to keep records in the form required by S.I. 423 of 2001 and accordingly he was unable to discharge the burden of proof of compliance with the Act as required by Section 25(4). He acknowledged that he breached Sections 11, 12 19 and 20 of the Act in respect of the Respondent though he contends that these were minor in nature and he has taken steps to prevent a recurrence. The Complainant has nevertheless been deprived of his entitlements under the Act that is intended to protect the health and safety of workers and breaches of several sections of the Act cannot be taken lightly.
Redress:
24. In considering the question of redress the Court has taken account of the economic value of the underpayment for annual leave and accepts the figure of €107.32 submitted by the Claimant. The Court has also taken into account the admitted breaches of Sections, 11, 12, 19 and 20 of the Act. The Court is also mindful of the Von Colson decision and has taken this into account in arriving at a fair and reasonable quantum of compensation in this case. The Court also notes that in that case the ECJ stated that any award should be proportionate and dissuasive.
25. The Court measures the quantum of compensation at €3,500 inclusive of the
€107.32 owing in respect of outstanding payments relating to annual leave entitlement. The balance of the €3,500 is in respect of compensation for the contraventions of the Act which were found to have occurred.
- Determination:
26. The complaints made by the complainants under section 11, 12, 19 and 20 of the Act are well founded. The appeal is rejected and the Decision of the Rights Commissioner is varied to the extent set out herein. The Complainant is awarded the sum of €3,500 calculated as set out at 25 above.
Signed on behalf of the Labour Court
Brendan Hayes
6th April, 2010______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.