FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : BOWEN CONSTRUCTION LIMITED (REPRESENTED BY CONSTRUCTION INDUSTRY FEDERATION) - AND - JOHN DALY DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. Appeal of a Rights Commissioner's Decision r-077498-wt-09/JOC
BACKGROUND:
2. The Complainant, a crane operator, worked mostly from 17.00 hrs to 05.00 hrs in the mornings. He claims that the Respondent Employer was in breach of the Organisation of Working Time Act 1997 and in particular Sections 12 and 15 in not allowing him rest periods his working hours in breach of Section 12 and by requiring him to work more than 48 hours per week in breach of Section 15. The Rights Commissioner awarded compensation to the Complainant in the sum of €5,000.
The 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 ("the Act")on the 12th February, 2010. The Court heard the appeal on the 22nd September, 2010, the earliest date suitable to the parties.
EMPLOYEE'S ARGUMENTS:
3. 1. The Complainant stated that the was required to work 12 hour shifts without proper rest periods for up to 60 hours per week. He stated that when working he received no rest periods. The employee submitted that without proper rest breaks there was a danger to both himself and to others due to fatigue. There existed at the time a cavalier attitude towards health and safety within Management.
COMPANY'S ARGUMENTS:
4. 1. The Company submitted that all of the alleged breaches were outside the time limit for making a claim under Section 27(4) of the Act. It was clear from a reading of the Section that the complainant had worked on only two dates which were within the six month time limit for bringing a complaint and no breach of Sections 12 or 15 took place on these dates.
2. Without prejudice to its submissions on the time limits for bringing the complaint, the respondent did provide rest periods. The respondent tole the Court that the Complainant worked on average 45.8 hours per week and received two 40-minute breaks each shift. If any breaches of the Act did occur they were only of a minor technical nature and would have only happened on very few occasions. The respondent submitted that in the circumstances, if the Court was disposed to find in favour of the complainant, the quantum of the award was excessive.
DETERMINATION:
The Complainant presented a complaint before a Rights Commissioner on 2nd April 2009 pursuant to Section 27 of the Organisation of Working Time Act 1997 ("the Act") claiming redress in respect of alleged breaches of Sections 12 and 15 of the Act.
The Rights Commissioner upheld the complaints and awarded the sum of €5,000.00.The Employer appealed the Decision of the Rights Commissioner.
The Employer held that only two shifts worked by the Complainant are within the statutory timeframe for the claim under Section 27 of the Act and on each of these shifts he worked from 5pm to 5am. It denied the allegations made and held that it was not in breach of the Act. The Employer told the Court that the Complainant worked on average 45.8 hours per week and received two 40-minute breaks on each shift.
Section 27 of the Act provides in relevant part as follows:
- (4) A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.
(5) Notwithstanding subsection (4), a rights commissioner may entertain a complaint under this section presented to him or her after the expiration of the period referred to in subsection (4) (but not later than 12 months after such expiration) if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause.
Having examined the matter, the Court is satisfied that no breach of Sections 12 or 15 occurred on the two shifts he worked within the time limit for bringing a complaint under the Act, i.e. 2nd and 6th October 2008.
Therefore, the Court overturns the Rights Commissioner’s Decision and finds that the complaint is not well-founded. The Court upholds the Employer’s appeal.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
11th October, 2010______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.