FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : KEY WASTE MANAGEMENT LIMITED (REPRESENTED BY FRANK DRUMM B.L.) - AND - DENISS VAHTEROVS (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. Appealing against a Rights Commissioner's Decision R-101335-Wt-10/GC
BACKGROUND:
2. The worker referred his case to the Labour Court on the 22nd August, 2011, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 18th January, 2012. The following is the Court's determination
DETERMINATION:
This case comes before the Court by way of an appeal by the Complainant Deniss Vahterovs, Represented by Mr Richard Grogan, Solicitor, Richard Grogan & Associates, Solicitors, against the quantum awarded by a the Rights Commissioner consequent upon a finding that the Respondent Company, Key Waste Management Limited Represented by Mr Frank Drumm, B.L., had acted contrary to the provisions of Sections 12, 15 and 17 of the Organisation of Working Time Act 1998.
Background
Key Waste management Limited is a medium-sized waste management collection company operating primarily in Leinster. The Company began providing commercial waste collection services in 2007 and has built up a core workforce of circa 40 employees.
The Complainant, Deniss Vahterovs joined the company as a driver on June 3rd2008. In September 2010 he made a number of complaints to the Rights Commissioner to the effect that
•Contrary to the provisions of Section 12 of the Act he did not receive proper scheduled breaks•Contrary to the provisons of Section 15 of the Act he was required to work in excess of 48 hours per week in the relevant four months reference period.
•Contrary to the provisions of Section 17 of the Act he did not receive 24 hours notice when required to work compulsory overtime.
The Rights Commissioner upheld the complaints made relating to breaches of Sections 12,15 and 17 of the Act. He awarded the Complainant €3,000 compensation for the breaches of the Act.
The Complainant appealed against the quantum of compensation awarded by the Rights Commissioner and sought to have it increased by the Labour Court.
The Case came on for hearing on 18thJanuary 2012.
Position of the Parties
The Complainant submitted that his working day was 6:30 a.m. to 5:00 p.m Monday through Friday each week. He was told to take his lunch at 1:00 p.m. each day. However each morning he was given a list of bin lifts he was required to complete before he was allowed to finish in the evening. If he stopped for his statutory breaks he would not be in a position to finish his work before 5.00 p.m. On a regular basis he could not finish the daily workload assigned to him and on those occasions he was told variously by the Transport Manager and a Company Director that he had no option but to work until all the lifts had been completed. This occasionally required that he work after five o’clock, sometimes as late as nine p.m.. He submitted that this happened despite the fact that he had not been in a position to take any break during the day other than to stop for long enough to eat a sandwich and take a drink. He submitted that working from 6:30 until 5:00 each day amounted to 51.5 hours per week. He said that all overtime was in addition to his standard working week of 51.5 hours. He submitted that his pay slip showed that he was paid for working 50 hours each week and that overtime was paid for hours worked in excess of the standard week. He submitted that he raised these issues on a number of occasions with various members of management but was consistently told that he should eat and go but that he must complete his work before he could finish for the day. He submitted that while he got his route roster at the start of each week he did not know the details of the number of lifts he was required to perform on a given day until he reported for work at 6:30 a.m. He submitted that this effectively meant that he did not get notice of overtime until he was given his workload each day.
He submitted that after he made a complaint to the Rights Commissioner the Respondent changed its practices and that he could now finish at five each evening. He also submitted that he was now instructed to take two 45 minutes break each day and that the work schedule allowed for this. He submitted that the Respondent had now put GPS tracking equipment on the trucks that enabled it to monitor truck movements more closely and he was required to record his breaks each evening on official records retained in the driver’s rest area in the head office depot.
Respondent’s Case
Mr Drumm, on behalf of the Company said that the it did not, at the relevant time, keep records of hours worked or of breaks taken in accordance with the provisions of the Act. He submitted that this has now been corrected and that accurate records are now kept in accordance with all the relevant statutes. He submitted that the Complainant was paid a salary and that the pay slips recorded the fact that he had worked all of his shifts in a given week but was not a record of the actual hours worked. He submitted that in the start up phase the company did not have sufficient work to occupy their drivers for the full week. On many occasions staff finished early and went home before 5 p.m. The pay slip nevertheless showed that each of the drivers had worked 50 hours even though this was demonstrably not the case. He submitted that the company made provision for all staff to take their breaks and no one was compelled to work overtime. He submitted that where, on any given day, the work load could not be completed before contracted finishing time the company would make arrangements to relieve the driver at 5.00 p.m. so as to enable him to finish on time if he so wished. He submitted that the Company published the duty rosters each week and staff knew therefore in advance what their work schedule was a week in advance.
Mr Mark Butler, a founding Director of the Company submitted that at a particular stage of the Company’s development some daily duties may have been too onerous and could not be completed in normal working hours. He accepted that this could have put pressure on the time available for staff to take breaks. He also accepted that there may have been pressure put on drivers to work to finish even where this required them work after normal finishing time.
He submitted that these matters had now been addressed and that all Statutory requirements under this act were being complied with. He submitted that hours of work and breaks are now recorded and there is close monitoring of the matter to ensure that the law is complied with and that staff take their breaks and do not work in excess of an average of 48 hours. He submitted that drivers are now not required to work overtime and arrangements are in place to enforce this.
Conclusions of the Court.
Section 25 of the Act requires that an employer maintains records of hours an employee works in a manner prescribed by the Minister. Failure to do so is an offence. The Section further provides that where an employer fails to maintain records in the prescribed form the burden of proving compliance with the Act lies with the employer.
On the evidence presented the Court finds that the Respondent has not discharged this burden.
Section 12
The Court finds that the Complainant was put under such pressure to complete his daily work schedule that he could not effectively take the breaks provided for in Section 12 of the Act. Any time he spent taking breaks simply extended the length of his working day and week beyond the 50 hours he was contracted to work. Furthermore the Court is not satisfied that the Respondent Company took any steps to ensure that the Complainant had sufficient time to take his breaks and had no system in place for monitoring compliance with the Act. The Court is mindful of the decision of this Court in The Tribune Printing & Publishing Group V Graphical Print and Media Union [2004] E.L.R. 222 that held that it is not enough that an employer tells an employee that he must take a break but must “ensure the employee receives those breaks”. In this case the Court finds that this did not happen. Accordingly the Court affirms the decision of the Rights Commissioner.
Section 15
The Court finds that the Complainant was regularly required to work to finish and that this meant he was required to work more than 48 hours per week in the relevant reference period. The Court is not satisfied that the Respondent has discharged the burden of proving compliance with the Act as required by Section 25(4) of the Act where an employer fails to maintain records in the statutory format. Accordingly the Court affirms the decision of the Rights Commissioner.
Section 17
The Court is satisfied that, on the evidence presented, the complainant received his work for the day at the commencement of his shift and was required to work to finish each day. Accordingly, he did not know until he reported for work whether he was required to work overtime that day. Accordingly he effectively did not get notice of overtime in a manner consistent with the provisions of Section 17 of the Act. The Court affirms the decision of the Rights Commissioner.
Remedy
The Court notes that the Complainant and the Respondent are ad idem on the changes that have taken place since the complaint was made and agree that the situation has now been addressed and brought into compliance with the provisions of the Act. On that basis the Court takes the view that the Rights Commissioner’s award is appropriate in this case.
Determination
The Court upholds the complaints made under Sections 12, 15 and 17 of the Act and the award made by the Rights Commissioner in this case.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
26th January, 2012______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.