FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : CLEARPOINT TRADING AS MR BINMAN (REPRESENTED BY DUNDON CALLANAN SOLICITORS) - AND - ZYGMUNT BIEN DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Double appeal against a Rights Commissioner’s Decision WT7272954/08/MR.
BACKGROUND:
2. Both the Employee and Employer 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 1st and 3rd December, 2009, respectively. The Court heard the appeal on the 20th April 2010, the earliest date suitable to the parties. The following is the Court's Determination:-
DETERMINATION:
The Complainant brought a case before the Rights Commissioner pursuant to the Organisation of Working Time Act, 1997 (the Act) alleging breaches of Section 15 of the Act. The Rights Commissioner upheld the complaint under Section 15 of the Act and awarded the Complainant €5,000. Both parties, for different reasons, appealed against the Decision of the Rights Commissioner.
The Law:
The relevant part of Section 15 of the Act provides: -
- 15. (1) An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereinafter in this section referred to as a “reference period”) that does not exceed
(a) 4 months, or
The Section goes on to provide for certain exemptions from this provision, which are not relevant in this case and none of which were raised or relied upon by the Respondent.
Background:
Mr Bien the Complainant, commenced working for Clearpoint, an unlimited private Company, trading as Mr Binman Clearpoint, in March 2005 until he took voluntary redundancy in May 2009. Throughout most of his employment, he had been regularly required to work in excess of the maximum 48 hours per week set out in the Act (evidence of actual hours worked each week were supplied to the Court and accepted by the Respondent as an accurate account of the Claimant’s working hours). The Respondent acknowledged that the Complainant had “worked in excess of an average of 48 hours per week for a significant proportion of his employment with the Company and that therefore there was a breach of the Act.”
Position of the Parties:
Mr Bien said he had not wanted to work these excessive hours and his health had suffered as a result. In addition he maintained that he had been compelled to repeatedly work overtime without notification as required by Section 17 of the Act. He said the breaches of the Act occurred since he was first employed in the Company. He also said that he had received no overtime premium in respect of any additional hours worked over and above the contracted 39 hours per week set out in his contract of employment. In all the circumstances he maintained that the €5,000 awarded by the Rights Commissioner was inadequate and should be increased.
The Respondent argued that the claimant worked an average of 50.5 hours in the period 5th June 2008 to 5th December 2008 decreasing to 48.77 hours per week in the period 5th December 2008 to 21st May 2009. He argued that in the period 22nd January 2009 to 21st May 2009 the average reduced to 47.35 hours per week. He acknowledged a breach of the Act but argued that it was minor in nature and that the award was therefore excessive and should be reduced. He argued that the Complainant had never raised any issues relating to his health being affected by the length of his working week. He denied that the Complainant had been threatened with dismissal if he failed to work the hours required of him by the Company. He acknowledged that no overtime premia were paid by the Company in respect of additional hours worked during the week or on Saturday.
In addition, he argued that the Complainant had compromised his cause of action by way of an agreement reached between his Trade Union and the Company in settlement of a trade dispute. Finally, he argued that the relevant period which the Rights Commissioner was entitled to take into account under Section 27(4) of the Act was “six months beginning on the date of the contravention to which the complaint relates”. The complaint was lodged on 5th December 2008 and accordingly the “relevant period” commenced on 5th June 2008. The Respondent said that it had now introduced new working arrangements and that it is now compliant with the provisions of the Act.
The Court's Conclusions:
The settlement terms of the industrial dispute between the Respondent, some of its employees and their Trade Union, in so far as they are relevant, provide
- “as part of this agreement all claims before the Rights Commissioner under the Payment of Wages and Working Time Act are withdrawn”.
The claim was lodged with the Rights Commissioner on 5th December 2008. No application for an extension of time was made to the Court and, accordingly,in accordance with Section 27 (4) of the Act , the relevant period commenced on 5th June 2008. The Court took no account of incidents of hours worked in excess of 48 hours per week on average that occurred before that date.
The Respondent acknowledged a breach of the Act and accepted as accurate, the weekly pattern of hours worked, submitted to the Court, by the Complainant. That pattern of work ranged from 64.5 hours in week ending 23/7/2008 to 48.0 hours worked in week ending 13/08/2008. With few exceptions, the weekly working hours were in excess of 48 hours, occasionally by a considerable amount.
The Court finds that these breaches were significant and persistent. The Court is mindful that the Organisation of Working Time Act, 1997 was intended to transpose into Irish law E.U. Directive [13/104/EC] which was intended to limit weekly working hours and provide for adequate rest periods to protect the health and safety of workers.
When considering an award,the Court is required to follow the decision of the ECJ in Van Colson and Kamann [1984] ECR 1891. Here the ECJ held that when considering awards of compensation for breaches of Community Rights, the sanctions imposed must be effective, proportionate and dissuasive; they must act as a disincentive against future infractions by the employer.
Having considered the evidence submitted by both parties and taking into account the decision of the ECJ in Van Colson and Kamann [1984] ECR 1891, the Court awards the Complainant the total sum of €7,500 in respect of the breaches of Section 15 of the Act and varies the Rights Commissioner’s Decision accordingly.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
25th June, 2010______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.