SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
GALWAY INDEPENDENT NEWSPAPERS LTD
(REPRESENTED BY CORCORAN MCLOUGHLIN SOLICITORS)
- AND -
(REPRESENTED BY ADVOKAT COMPLIANCE LIMITED)
Chairman: Ms Jenkinson
Employer Member: Ms Doyle
Worker Member: Mr Nash
1. Appeal of Rights Commissioner's Decision r-068581-wt-08-MH
2. This case concerns an appeal by the employer of Rights Commissioner's Decision No: r-068581-wt-08-MH. The issue concerns the claimants assertions that he did not receive his contractual entitlement of a one-hour lunch break or adequate rest periods as prescribed by the Act. He also claims to have contiuously worked hours in excess of the statutory maximum of 48 hours per week.
The worker was employed as a Sales Manager for Galway Independent Newspapers Limited and claims that part of his duties was approving and proofing all material prior to it being printed. He further asserts that due to difficulties within the office and in receiving final documents prior to printing that he was regularly required to stay late at work.
Management's position is that the worker was not required to stay late at the office except in exceptional circumstances which did not occur often. Management further contends that the finished document would go for printing at a certain time and it would not be printed if this deadline was not adhered to. In such circumstances it claims that there would be no need for the worker to remain on the premises as late as is being claimed. Management further contend that it complied with the Organisation of Working Time Act, 1997 in relation to the worker's entitlements to rest periods and his contractual entitlement of a lone-hour lunch break
The issue was referred to a Rights Commissioner for investigation. His Decision issued on the 11th February, 2009 and awarded the worker €3000 in compensation on the basis that the employer was unable to provide records to disprove the workers claims in relation to the additional working hours and other alleged breaches.
On the 19th March, 2009 the employer appealed the Rights Commissioner's Decision in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 16th June, 2010.
3 1 The worker was given keys and was required to open the Company premises in the morning. In addition, he was requested to ensure that the premises was secured in the evening before he left. This indicates that he was first to arrive and last to leave the premises each day and substantiates his claim that he worked hours well in excess of the statutory maximum.
2 As part of his duties he was responsible for giving final approval of documents prior to printing. There were continuous delays with receiving these documents which led to delays in items being sent to the printers. These delays as well as other problems within the office required the worker to frequently remain at work unitl late in the evening.
3 The worker was required to remain late at the office on Tuesdays prior to the newspaper going to print that evening. As a result of this and the necessity to be at work early the following morning he did not get adequate rest periods as prescribed by the Act. In addition due to his workload, the worker was frequently unable to take his lunch break, instead having to eat his lunch at his desk.
4 1 The worker was not required to work any hours in excess of the statutory maximum allowable. Many staff members had keys in the event they wished to arrive early for work and whoever was last to leave was asked to ensure the premises was secured. The worker's claims as regards his obligations in these matters is wholly innacurate.
2 There was no need for the worker to remain at work for the hours that is claimed. If the finally approved items were not sent to the printers on time the paper would miss its deadline and would not be printed. The printers would strictly adhere to the slot which each of its customers was given. There were very few instances where the newspaper missed its assigned slot which indicates that the work was completed shortly after the end of the normal working day.
3 The worker was not required to have his lunch break at his desk, nor was he required
The Complainant brought a complaint before a Rights Commissioner pursuant to the Organisation of Working Time Act 1997 (the Act) alleging breaches of Sections 11, 12 and 15of the Act by the Respondent . The Rights Commissioner upheld the complaints and awarded the sum of €3000.00 compensation.The Respondent appealed the decision of the Rights Commissioner.
Having considered the submissions of both parties, the Court finds that there was a significant conflict of evidence on a substantial number of issues concerning the hours worked by the Complainant.
The Complainant contends that he did not receive his entitlement to a rest period of 11 consecutive hours on Tuesdays as he was normally required to work until 10.00pm and on occasion until 12midnight on Tuesdays. He was then required toreturn to work at 7.50am the following morning. This he contended was a breach of the provisions of section 11 of the Act.
He contends that he could not avail of his contractual entitlement to one hour lunch break and therefore did not receive his entitlement to a meal break in accordance with section 12 of the Act
Furthermore, he contends that he worked on average 60 hours per week, in contravention of section 15 of the Act.
The Respondent submitted details of the Complainant’s contract of employment which stated that he was required to work those hours necessary to facilitate the needs of the business. It stated that the normal working hours were 39 hours per week but that the Complainant would be required to work additional hours from time to time. The Respondent stated that there was no requirement on the Complainant to work outside the standard hours of 9.00am to 5.30pm except on Tuesdays when he was required to work an extra half hour, due to the newspaper going to print that evening. The Respondent did not produce any records at the hearing to substantiate its position.
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 Respondent 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 Complainant.
Following the hearing both sides forwarded additional information to assist the Court in its deliberations. The information submitted by the Respondent gives details on the weekly printing deadlines. While the information supplied by both sides fails to give specific information on the hours worked by the Complainant, it is sufficient to cast doubt on the Respondent’s contentions that there was no breach of the Act and goes further to strengthen the Complainant’s assertions.
On that basis, having considered all the evidence before it, the Court finds that the Respondent has failed to prove, on the balance of probabilities, that it complied with the provisions of Sections 11 12 and 15 of the Act in respect of the Complainant during the period to which his claim relates.
Therefore, the Court concurs with the Rights Commissioner’s findings that the Respondent was in breach of the Act and accordingly finds that the appeal fails.
In all the circumstances of this case the Court is of the view that the award of compensation decided by the Rights Commissioner should be enhanced. Accordingly the Court determines that the complainant should receive compensation in the sumof €5,000.00 and directs the Respondent to pay to the Complainant compensation in that amount.
The Court rejects the Respondent’s appeal and the decision of the Rights Commissioner is varied accordingly.
Signed on behalf of the Labour Court
11th August 2010______________________
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.