SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
KEY WASTE MANAGEMENT LIMITED
(REPRESENTED BY FRANK DRUMM B.L.)
- AND -
(REPRESENTED BY RICHARD GROGAN & ASSOCIATES)
Chairman: Mr Hayes
Employer Member: Ms Cryan
Worker Member: Ms Tanham
1. Appealing against a Rights Commissioner's Decision R-098195-Wt-10/GC
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:
This case comes before the Court by way of an appeal by the Complainant Robertas Kanys, 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.
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, Robert Kanys, joined the company as a driver on October 20th2008. 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 provisions 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.
He appealed the quantum awarded by the Rights Commissioner to the Labour Court.
The Case came on for hearing on 18thJanuary 2012.
Position of the Parties
The Complainant said 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 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 said 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 said that working from 6.30 a.m. until 5.00 p.m. 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 said 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 said 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 said 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 said that this effectively meant that he did not get notice of overtime until he was given his workload each day.
He said 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 said that he was now instructed to take two 45 minutes break each day and that the work schedule allowed for this. He said 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.
Mr Mark Butler, a founding Director 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 said that this has now been corrected and that accurate records are now kept in accordance with all the relevant statutes. He said 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 said 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 5.00 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 said that the company made provision for all staff to take their breaks and no one was compelled to work overtime. He said 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 said that the Company published the duty rosters each week and staff knew therefore in advance what their work schedule was a week in advance.
Under questioning from the Court he said 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 said that these matters had now been addressed and that all statutory requirements under this act were being complied with. He said 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 said 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 maintain records of hours an employee worked 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 Court finds that 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.
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  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 upholds the Rights Commissioner’s decision in this regard.
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 upholds the decision of the Rights Commissioner.
The Court is satisfied, on the evidence presented, that 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 upholds the decision of the Rights Commissioner.
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 that 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.
The Court upholds the complaints made under Sections 12, 15 and 17 of the Act and instructs the Respondent to pay the Complainant the sum of €3,000 compensation for breaches of his rights under the Act.
Signed on behalf of the Labour Court
26th January, 2012______________________
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.