FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : FANNIN LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - MAREK MARCINIUK (REPRESENTED BY P.C.E.) DIVISION : Chairman: Mr Duffy Employer Member: Ms Cryan Worker Member: Ms Ni Mhurchu |
1. Appealing Against A Rights Commissioner's Decision R-115933-Wt-11/Mmg
BACKGROUND:
2. A Rights Commissioner hearing took place on the 9th January 2012, and a Decision was issued on the 17th April 2012.
- The Worker appealed the Decision of the Rights Commissioner to the Labour Court on the 18th April 2012, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 10th July 2012.
DETERMINATION:
This case relates to three appeals by Marek Marciniuk (the Claimant) against the decisions of Rights Commissioners in his complaints under the Organisation of Working time Act 1997 (the Act) against his former employer, Fannin Healthcare Limited (the Respondent). In each of the decisions the Rights Commissioner found that the complaints were not well founded. The appeals were conjoined and heard together by the Court.
The complaints
The Claimant contends that the Respondent contravened three provisions of the Act in relation to his employment, namely: -
- •Section 12, in relation to the provision of breaks and intervals at work;
- •Section 17 in relation to the notification of overtime,
- •Section 26, where it is alleged that the Respondent penalised the Claimant by having initiated a disciplinary process in response to the Claimant having refused to work overtime of which he had received no prior notification.
The Respondent is a provider of health care products and services to the HSE. The Claimant was employed by the Respondent as a driver. His duties involved delivering important medical and other products to the Respondent’s customers. He commenced employment with the Respondent on 3rdSeptember 2007 and his employment terminated on 2ndNovember 2007. He was employed pursuant to a contract of employment in writing which he signed on 14thSeptember 2007.In relation to working time this contract provides that the Claimant’s hours of work were 39 per week and that he was to be provided with a lunch break of 30 minutes per day and that other breaks would be in accordance with the Act.
Facts
The Court received written and oral submissions from the parties and it also heard sworn evidence from the Claimant. Having evaluated the submissions and the evidence proffered the Court has reached the following conclusions of fact: -
The Claimant was employed as a driver and his work involved traveling between locations in making deliveries. Having regard to the nature of his work he was, of necessity, responsible for organising his working time during the day, including the taking of breaks. There were no fixed starting and finishing times specified in the Claimants contract of employment although in practice his working hours were from 8.30am to 5pm, and 4pm on Friday, with an unpaid lunch break of 30 minutes. The Court is satisfied that the Claimant was at all times aware that he was required to take a 15 minute break in the morning and a further 15 minute break in the afternoon. There was a GPS device fitted to the vehicle driven by the Claimant which recorded the journeys undertaken by him including the times it was being driven.
It appears that the Claimant developed a practice of driving home at lunch time in his work vehicle and taking a one hour break. This matter was raised in the course of a disciplinary investigation. The Respondent told the Claimant that he was obliged to take breaks but that he could not take excessive breaks. The Claimant contended in evidence that he believed that he was entitled to a one hour break. He also contended that on occasion he was unable to take other breaks he took a longer lunch break instead.
The Respondent told the Court - and the Court accepts- that the work of drivers, including that of the Claimant, was scheduled so as to accommodate the taking of breaks. The Court further accepts that having regard to the nature of the Claimant’s work he was himself largely responsible for taking breaks during the course of the day.
The Court was also told, and it accepts, that having regard to the exigencies of its business a driver who started on a journey was obliged to complete that journey and make the delivery even where this necessitated working for relatively short periods after normal finishing time. There were other occasions on which the Respondent required urgent deliveries to be made outside normal working hours and these deliveries were assigned to drivers on overtime. This overtime was allocated from a rota operated by the Respondent and on a voluntary basis. Employees were entitled to refuse this overtime. The Claimant was removed from this rota at his own request.
A disciplinary process was initiated against the Claimant in August 2011 in relation to complaints alleging misconduct and poor performance by the Claimant. In consequence the Claimant was issued with a final written warning. The imposition of this warning was appealed internally and to a Rights Commissioner and was upheld. The Claimant contends that this disciplinary process was initiated because he refused to work overtime without the notification required by s 17 of the Act. There were further disciplinary issues involving the Claimant which ultimately resulted in his dismissal. These later processes and the dismissal are the subject of separate proceedings and do not arise for consideration in these appeals.
Conclusions
Against that factual background the Court has reached the following conclusions in relation to the complaints under consideration:
Section 12 – Breaks
In evidence the Claimant told the Court that he did not receive adequate breaks during the course of his working day. The Claimant referred to his time sheets and in particular to the timesheets for August 2011 in which he had recorded that on a number of occasions he did not receive his statutory entitlement to breaks. The Court found the evidence given by the Claimant on this point to be vague, uncertain and unreliable. Having regard to the issues that arose in relation to the Claimant taking longer breaks than his entitlement, the Court has difficulty in accepting that he was prevented from taking the breaks to which he was entitled. In any event the Court believes that the Claimant was at all times aware that he was entitled to take breaks and if he did not take breaks it was through his own choosing.
In these circumstances even if the Claimant did not take breaks on some occasions (and the Court makes no finding to that effect) the Respondent cannot be held liable for a contravention of the Act on that account.
Section 17 – Notification of Overtime
The Court finds that the Claimant may have worked relatively short periods beyond his normal finishing time on isolated occasions. However, where this occurred it was to complete deliveries which, due to unforeseen factors, could not be completed within the scheduled working time. Such occurrences were, in the Court’s view, saved by s.17(4) of the Act and did not amount to contraventions of the Act.
Section 26 – Penalisation
The Claimant contends that the decision of the Respondent to invoke a disciplinary process against him in August 2011 amounted to penalisation within the meaning of s.26 of the Act. The Court can see no basis whatsoever upon which this complaint could be upheld. The records of the disciplinary meeting held with the Claimant disclose that the issues raised related to his general conduct and performance in matters unrelated to the provisions of the Act. In so far as an issue may have arisen in relation to the Claimant’s failure to complete a delivery, the Court, for the reasons referred to in relation to his section 17 complaints, does not accept that the requirement for him to do so comes within the ambit of that section and is not, therefore a protected act within the meaning of s.26 of the Act.
Determination
For the reasons set out herein the Court finds that none of the complaints made made by the Claimant are well founded. Accordingly his appeals are disallowed and the decisions of the Rights Commissioners are affirmed.
Signed on behalf of the Labour Court
Kevin Duffy
12th July 2012______________________
CRChairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.