SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
PETER O' BRIEN & SONS (LANDSCAPING) LIMITED
(REPRESENTED BY PENINSULA BUSINESS SERVICES (IRELAND) LIMITED)
- AND -
MR MARSIMS KUDINOVS
(REPRESENTED BY RICHARD GROGAN & ASSOCIATES)
Chairman: Ms Jenkinson
Employer Member: Mr Murphy
Worker Member: Ms Ni Mhurchu
1. Appeal of Rights Commissioners Decision R-100330-Wt-JT
2. The issue before the Court concerns an appeal of a Rights Commissioner's Decision by the Worker. The Worker was employed by the Company as a General Operative. It is his contention that there is no contract of employment which advises the employees of their hours of work and that he did not receive adequate notice when required to work overtime. The Company refute this claim. It submitted that finish times for employees varied due to the nature of the work and that the appropriate rates were paid for any overtime worked.
The Worker's Representative appealed the Decision of the Rights Commissioner to the Labour Court on the 29th September, 2011, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 11th January, 2011.
The Claimant brought a complaint before a Rights Commissioner pursuant to the Organisation of Working Time Act 1997 (the Act) alleging breaches of Sections 17, 19 and 21. The Rights Commissioner did not uphold the complaints. The Claimant appealed the Decision.
At the hearing of the appeal Mr. Richard Grogan, Solicitor, Richard Grogan and Associates, Solicitors, representing the Claimant, informed the Court that the only matter under appeal was the Rights Commissioner’s Decision under Section 17 of the Act.
Mr. Richard Grogan complained to the Court that the Employer contravened Section 17 of the Act by not providing the Claimant with adequate notice of a requirement to work additional hours. Mr Grogan accepted that the Claimant was supplied with a contract of employment which indicated his starting and finishing times of work. However, he submitted that, as the Claimant’s finishing times varied and he was required to work in excess of the normal finishing times, he should have been given adequate notice in accordance with Section 17(2) of the Act.
Ms Judy McNamara, Peninsula Business Services (Ireland) Limited, representing the Respondent, informed the Court that on certain occasions due to weather conditions the Claimant was required to work outside his normal working hours for which it may not always have been possible to give the requisite 24 hours’ notice, e.g. pouring concrete, finishing a gardening job before the weather changed etc. The Employer stated that on each such occasion the Claimant agreed to work the additional hours for which overtime rates were paid.
The Court is satisfied that the notification of additional hours in such circumstances comes within the definition of Section 17 (4)of the Act:
- “A notification to an employee….. shall not prejudice the right of the employer concerned, subject to the provisions of this Act, to require the employee to start or finish work or, as the case may be, to work the additional hours referred to in subsection (2) at times other than those specified in the notification if circumstances, which could not reasonably have been foreseen, arise that justify the employer in requiring the employee to start or finish work, or as the case may be, to work the said additional hours at those times.”
Therefore, the Court is satisfied that there was no contravention of Section 17 of the Act in relation to the Claimant.
The Court has considered the Claimant's appeal of the Rights Commissioner's Decision and concurs with the findings of the Rights Commissioner and accordingly upholds the Rights Commissioner's decision. The appeal fails.
The Court so determines.
Signed on behalf of the Labour Court
Enquiries concerning this Determination should be addressed to David P Noonan, Court Secretary.