FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : OLCON CIVIL ENGINEERING LIMITED - AND - GRZEGORZ KUPIEC (REPRESENTED BY POLISH CONSULTANCY ENTERPRISE) DIVISION : Chairman: Mr Hayes Employer Member: Ms Doyle Worker Member: Ms Ni Mhurchu |
1. Appeal of Rights Commissioner’s Decision No: r-077046-wt-09/EH
BACKGROUND:
2. Mr Gregorz Kupiec (the Claimant) alleges breaches of Sections 15, 19 and 21 of the Organisation of Working Time Act 1997 ((the Act). The claim comes before the Court pursuant to Section 28(1) of the Act, by way of an appeal of a Rights Commissioner’s Decision issued on 12th August 2009. The Appeal was dated 1st September 2009. The Court heard the matter on 22nd April 2010.The Respondent appealed the Rights Commissioner’s decision and was represented in Court by Mr Maurice Pinfield, a director of the Company. The Claimant did not attend the hearing but was represented by Mr Blasey Nowak, Polish Consultancy Services.
- The Claimant commenced his employment with Olcon Civil Engineering Ltd.(the Respondent) on 12th March 2008 and his employment terminated on 19th December 2008. The Claimant was employed as a General Operative. He was paid €560.00 gross per week. He submitted that his employer breached Section 19 of the Act as he did not receive his full annual leave entitlements for the 2008 leave year. In addition he submitted that his employer breached Section 21 of the Act in that he was not paid for two Public Holidays in that year, to which he was entitled. He further submitted that, over the course of his employment with the Respondent, he worked an average of 55 hours per week and therefore the Respondent was in breach of Section 15 of the Act.
- The Respondent did not attend at the Rights Commissioner’s Hearing.
- Rights Commissioner’s Decision:
- The Rights Commissioner found that the Respondent had breached Sections 19and 21 of the Act and that the Claimant was entitled to payment for 4 days annual leave and two Public Holiday in respect of the 2008 leave year. In addition he found that the Claimant worked in excess of 48 hours per week on average over the period of his employment and that the employer was in breach of Section 15 of the Act. He awarded the Claimant compensation of €2,250.
- Appeal to the Labour Court:
- The Respondent appealed the Rights Commissioner’s decision to the Labour Court. Mr Maurice Pinfield, Director, attended on behalf of the Respondent.
- Despite the fact that neither the Claimant nor the Managing Director of the Respondent Company was available to give evidence, both parties requested the Court to proceed with the hearing of the Appeal.
- Respondent’s Case:
- The Respondent argued that the Claimant was hired as a HGV Driver. He was made aware of his Terms and Conditions of employment when he completed and signed his Form 12A. Shortly after his appointment it became clear he could not operate the relevant HGV plant and equipment to the required standard and he was re-graded and reassigned to driving the company pickup truck.
- The Claimant used company transport to commute between his house and his place of work.
- In 2008 the company was severely affected by the downturn in the construction sector and could not provide 5 days work each week to all of its employees. On 31st October 2008 all employees were placed on protective notice. The Claimant was advised, along with all other staff, that they could not be guaranteed full time work in November and was advised to either sign on with the Department of Social Welfare for short time working or to look for alternative employment. The Claimant worked a maximum of 20 hours per week during November. At Christmas time the Claimant’s employment was terminated due to lack of work.
- The Respondent stated that it paid the Claimant an average weeks pay during the months of November and December 2008 whilst he was on short time. Mr Pinfield submitted details of lodgements into the Claimant’s bank account for the months of November and December 2008 in support of this submission.The Respondent submitted that the Claimant made it clear from early 2008 that he did not want to be rostered for work on Saturdays. On two occasions during his employment the Claimant had refused Saturday work when midweek work was not available due to inclement weather and subsequent flooding during the normal working week.
- The Respondent said he had paid the Claimant his full holiday entitlements.
- Mr Pinfield confirmed that the Respondent did not keep records in accordance with the requirements of the Organisation of Working Time Act. He said the Respondent had tried on several occasions to do so but the inclement weather had rendered its efforts futile.
- In all the circumstances the Respondent claimed it had discharged all of its obligations to the Claimant.
The Claimant’s Case:
- Mr Nowak, on behalf of the Claimant, submitted that he did not receive his full annual leave entitlements for the 2008 leave year. The Claimant submitted that he had received two weeks annual leave in 2008 and that he was, in accordance with Section 19 of the Act entitled to a further two weeks. He further submitted that he received his P-45 on 19th December 2008 and accordingly was entitled, in accordance with Section 21 of the Act, to be paid for the Public Holidays that fell on December 25th and 26th of that year.
- He submitted that he worked a10 hour day, 6 days a week over the course of his employment with the Respondent. He submitted that this constituted a breach of Section 15 of the Act.
DETERMINATION:
Findings of the Court:This is a most unusual case. The Claimant did not attend the Court but made submissions through his representative. The Respondent advised the Court that the company Managing Director, who was directly involved in dealing with this matter, was unavoidably detained elsewhere and could not attend the hearing to give evidence. Both parties made submissions through their representatives. Both agreed that, despite this, they wished the appeal to proceed. The Court must therefore make findings based on submissions that have not been augmented by oral evidence. Against this background the Court makes the following findings: -
Section 25(1)
The Court finds that the Respondent did not keep records in accordance with the requirements of Section 25(1) of the Act.
Section 25(4)
The Court finds that, in accordance with Section 25(4) of the Act, the onus of proving compliance with the Act rested with the employer.
- Section 15 (1)
The Court finds that, in the absence of records, the Respondent must discharge the burden of proving compliance with Section 15 (1) of the Act. On the basis of the evidence of Mr Maurice Pinfiled, Company Director, regarding the extent of short time working experienced by the Respondent in 2008, and the expressed refusal by the Claimant to be rostered for Saturday work during his employment with the company, the Court finds that, on the balance of probabilities, the Respondent did not breach Section 15(1) of the Act.
- Section 19 and 21
The Court further finds that, in the absence of records, the Respondent failed to prove that it had met its obligations to the Claimant under Section 19 and 21 of the Act. The Court finds that the Claimant is entitled to payment for two Public Holidays, (25th and 26th December 2008) and for four outstanding days annual leave.
In the unusual circumstances of this case, the Courts awards the Claimant compensation in the sum of €680.00The Rights Commissioner’s Decision is varied accordingly.
The Court so Determines.
Signed on behalf of the Labour Court
Brendan Hayes
4th June 2010______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.