SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
CRYSTAL VALET CENTRE LTD
(REPRESENTED BY PENINSULA BUSINESS SERVICES (IRELAND) LIMITED)
- AND -
(REPRESENTED BY KEN STAFFORD)
Chairman: Mr Hayes
Employer Member: Ms Cryan
Worker Member: Ms Ni Mhurchu
1. Appeal of Rights Commissioner's Decision r-108388-wt-11.
2. A Rights Commissioner hearing took place on the 10th January 2012 and the following Decision was issued on the 19th April 2012:
- "I find that the complaint is well founded and hereby require the respondent to pay the claimant €2,000 in compensation."
The Company appealed the Decision of the Rights Commissioner to the Labour Court on the 30th May 2011, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 16th August 2012.
Mr Gerald Kirwan (“the Complainant”) submits that he worked for Crystal Valet Centre limited (“the Respondent” or “the Employer “) from 28 September 2010 to 22ndNovember 2010. The Respondent disputes these dates and submits that the Complainant was employed by the company on a series of unrelated contracts of employment commencing on 8thOctober 2010 and terminating on 22 November. The Respondent operates a car valeting business in three locations in retail centres in the Galway area. The Complainant was employed in a sales capacity initially. However he was also required to assist in the valeting operations of the business. The relationship between the Complainant and the Respondent deteriorated over time. The Complainant’ ceased working for the respondent on 22ndNovember 2010. On 19 April 2011 the Complainant submitted a complaint to the Rights Commissioner under the Organisation of Working Time Act 1997 (“the Act”). The Rights Commissioner decided that the complaints were well founded and awarded the Complainant €2,000 compensation for the breaches of the Act involved. The Respondent appealed that decision to the Labour Court. The case came on for hearing on Thursday 16 August 2012.
The position of the Parties
The Respondent submits that the Complaint to the Rights Commissioner was made on 19thApril 2011 and accordingly the impugned acts complained of must have occurred within six months of that date. The Respondent refers to the provisions of Section 27(4) of the Act in this regard.
The Respondent submits that the issues complained of occurred within the six month time limit and refers to other events that occurred before that time as evidence that each of the incidents complained of was not isolated but was part of a pattern of behaviour by the employer that showed no regard for the provisions of the Act.
Findings of the Court
Section 27(4) of the Act provides:
- (4)A rights commissioner shall not entertain a complaint under thissectionif 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.
The Complainant made the complaint to the Rights Commissioner on the 19thApril 2011. Accordingly the Court has jurisdiction to entertain complaints in relation to contraventions of the Act that occurred within six months of that date.
The Complainant told the Court that the Respondent did not make any provision for him to take the rest breaks prescribed in section 12(1) and 12(2) of the Act. He submits that on no occasion in the relevant time was he allowed a 15 minute break after working for a period of 4 hours and 30 minutes. He further told the Court that he was not allowed a break of at least 30 minutes after working for a period of 6 hours for the Respondent.
The Respondent submits that the Complainant was allowed the breaks provided for in the Act. Mr Larry Craughwell told the Court that the Complainant was a smoker and after each car was valeted he stopped work to have a cigarette. He told the Court that the Complainant was allowed a lunch break of an hour each day on which he worked for more than 5 hours. He said that the lunch break for the staff was facilitated by the rotational deployment of management staff amongst the three facilities the Company operated in the Galway area. He acknowledged that the Company did not keep records of the rest breaks. He also acknowledged that he was not on site every day and accordingly could not account for the days on which he was not present on site other than to say that another member of management was scheduled to relieve staff for lunch breaks on those days.
Mr Cathal Melly, a supervisor with the Respondent, told the Court that he alternated lunchtime relief duties with Mr Craughwell. This meant that he was present on site to relieve the Complainant to take his lunch break on the days upon which Mr Craughwell was not available to do so. He acknowledged that he could not give details of any of those dates and acknowledged that no records were kept in that regard. He said lunch break was 45 minutes to 1 hour. He said that the Complainant was a smoker and they both took smoke breaks together in the course of their shifts.
Findings of the Court
Section 25 of the Act requires an employer to maintain records of his employees’ rest breaks and working time. Where it fails to keep such records the burden of proving compliance with the provisions of the Act lies with the employer. In this case the Respondent told the Court that it did not keep such records. Accordingly the burden of proving compliance with the provisions of Section 12 of the Act lies with the employer.
The Court finds that there was no system in place to provide the Complainant with the breaks to which he was entitled under the provisions of Section 12(1) and 12(2) of the Act. In their evidence Mr C raughwell and Mr Melly told the Court that Complainant took smoke breaks in the course of his shift. They also told the Court that these typically lasted up to 5 minutes. At no point in their evidence did they identify any day on which the Complainant was allowed 15 minutes break after working for a period of 4 hours and 30 minutes. Equally on no occasion did they identify a day on which the Complainant was allowed a break of 30 minutes after working for a period of more than 6 hours.
Accordingly the Court finds that the Respondent has failed to discharge the burden of proving compliance with the provision of Sections 12(1) and 12(2) of the Act.
The Court determines that the complaint made by the Complainant alleging breaches of Sections 12(1) and 12(2) of the Act are well founded.
Section 13 Weekly Rest Periods
At the hearing the Complainant withdrew the complaint relating to an alleged breach of Section 13 of the Act.
Section 14 Sunday Work
The Complainant submits that he was regularly required to undertake Sunday work for which he was not compensated in the manner provided for in Section 14 of the Act.
In evidence the Complainant told the Court that he was regularly required to work on Sunday and in the relevant period he worked on Sunday 24 October 2010. He told the Court that he did not receive any compensation for working on that day other than his standard hourly rate of pay.
Ms Orla Kelly, the Complainant’s partner, told the Court that she attended a wedding on Saturday 23rdOctober 2010 and returned home on Sunday 24thOctober 2010. She said that the Complainant was at work in the Respondent’s business premises on the site of the Headford Road shopping centre. She said that she went to the shopping centre to do her weekly shopping and called into the Complainant whilst she was there. She told the Court that the Complainant was working for the Complainant on that day.
The Respondent submits that the Complainant did not work on Sunday 24thOctober as the business was closed on Sunday. The Respondent submits that the Complainant was paid at the rate of €8.65 per hour which was the minimum wage at that time.
Findings of the Court
The Court finds Ms Kelly an honest and her evidence compelling. The Court also found her and the Complainant’s evidence consistent and believable and prefers it to the evidence of the Respondent. The Court notes that the Respondent maintains that the Complainant was paid the minimum wage for all hours he worked for the Company. Accordingly the Court finds that the Respondent did not increase the Complainant’s rate of pay or allow him any time off for working on Sunday 24thOctober 2010.
The Court determines that the Complaint made by the Complainant alleging a breach of Section 14 of the Act is well founded.
Section 15 Weekly Working Hours
At the hearing the Complainant withdrew the complaint relating to an alleged breach of Section 15 of the Act.
Section 21 Entitlement in Respect of Public Holidays
At the hearing the Complainant withdrew the complaint relating to an alleged breach of Section 21 of the Act.
Section 23 Compensation on cesser of employment
The Complainant submits that he worked 363 hours for the respondent for which he accrued an entitlement to annual leave at the rate of 8% of the hours worked which amounts to 29.04 hours. The Complainant submits that he was paid a total of €400 per week. He submits that this amounts to hourly rate of 10.25 per hour.
The Respondent submits that the Complainant was paid at the rate of €8.65 per hour. It submits that he Complainant worked for a total of 155 hours in the course of his employment. This entitled the Complainant to total gross pay of €1340.75. The Complainant was, in error, paid a total of €1468.02 which amounts to an overpayment €127.27. His statutory holiday entitlement amounts of €107.26. As the overpayment is greater than the holiday pay entitlement the Respondent submits that there is no monies due to the Complainant and the provisions of Section 23 of the Act have been met.
Findings of the Court
There is a direct conflict of evidence between the parties on this point. The Court reviewed the pay slips submitted in evidence by the Respondent. None of the pay slips refer to a payment in respect of holidays for any period during which the Complainant was employed by the Respondent. Furthermore the final pay slip makes no reference to cesser pay. The Court also notes that Complainant submits that he was paid two sums of money each week. He states that he was paid €250 by way of a payment into his bank account and a further €150 cash payment. The Respondent submits that no such cash payment was made.
The Court finds the Complainant a reliable witness and his evidence consistent with the pay slips produced to the Court by the Respondent. The pay slips show no evidence of a payment of any holiday pay to the Complainant. Accordingly the Court finds that the Respondent failed to compensate the Complainant in respect of his accrued holiday entitlement when his employment ceased in November 2010.
Determination of the Complaint
The Complaint made by the Complainant alleging a breach of Section 23 of the Act is well founded.
The Court determines that the Complaints made by the Complainant alleging breaches of Sections 12, 14 and 23 of the Act are well founded. The Court awards the Complainant the sum of €1,000 to include both the accrued holiday pay due to him and compensation for the breaches of his entitlements under Sections 12, 14 and 23 of the Act.
The Respondent advised the Court that it has now brought its record keeping into line the with provisions of the Act.
The Rights Commissioner’s decision is set aside.
The Court so determines.
Signed on behalf of the Labour Court
19th November, 2012______________________
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.