SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
GOODE CONCRETE (IN RECEIVERSHIP)
- AND -
(REPRESENTED BY ANTHONY KERR B.L. INSTRUCTED BY RICHARD GROGAN & ASSOCIATES SOLICITORS)
Chairman: Mr Duffy
Employer Member: Ms Doyle
Worker Member: Mr Shanahan
1. Appealing against a Rights Commissioner’s Decision r-089580-wt-10/RG.
2. The Worker appealed against the Decision of the Rights Commissioner as she found that Sections 12 and 15 of the Act had not been breached and also against the quantum of the award in respect of the breaches found to have occurred.The Employee appealed the Rights Commissioner’s Decision to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997 on the 28th September, 2010. The Court heard the appeal on the 29th August, 2012.The Receiver of the Respondent Company was informed of the time, date and place of the hearing but did not attend and was not represented.
3. 1.The Worker claims that the Employer contravened Sections 11, 12, 15 and 17 of the Act in that he was not given adequate daily rest nor adequate rest and intervals while at work, that he was required to work in excess of 48 hours per week and that he was not provided with adequate information in relation to a requirement to work overtime.Documents were presented to the Court that confirm the Worker's claims.
- This is an appeal by Mr Jakov Diadiajev against the Decision of a Rights Commissioner in his claim against his former employer, Goode Concrete (In Receivership) under the Organisation of Working Time Act 1997 (the Act).
The Claimant attended the hearing and was represented by Mr Anthony Kerr B.L. instructed by Richard Grogan and Associates, Solicitors. The Receiver of the Respondent was informed of the time, date and place of the hearing but did not attend and was not represented.
The complaints were presented to the Rights Commissioner on 6thJanuary 2010. The Claimant’s employment with the Respondent ended on 2ndOctober 2009. Hence, as found by the Rights Commissioner, the cognisable period for the purposes of the within claims is from 7thJuly 2009 until 2ndOctober 2009 (hereafter referred to as the cognisable period).
The Claimant contends that the Respondent contravened Sections 11, 12, 15 and 17 of the Act in that he was not afforded adequate daily rest, he was not afforded adequate rest and intervals at work, that he was required to work in excess of 48 hours per week and that he was not provided with adequate information in relation to a requirement to work overtime.
The Decision of the Rights Commissioner
The claim was investigated by a Rights Commissioner who founds that the Respondent had contravened Sections 11 and 17 of the Act. She founds that the Respondent had not contravened Sections 12 and 15 of the Act. The Rights Commissioner made a composite awarded of compensation to the Claimant in the amount of €500.
The Claimant appealed against the Decision of the Rights Commissioner in so far as she found that Sections 12 and 15 of the Act had not been contravened and against the quantum of compensation in respect of the contraventions found to have occurred.
The Claimant's case
This Section requires that an Employee is entitled to a rest period of not less than 11 hours in each period of 24 hours. The documentary evidence before the Court show that the Claimant did not receive the requisite rest period on 24th-25thJune 2009, 8th-9thJuly 2009, 14th-15thJuly 2009, 1st-2ndSeptember 2009 and 18th-19thSeptember 2009. The first mentioned date (24th-25thJune 2009) is outside the cognisable time period and cannot be taken into account. In respect of the other dates listed the Respondent contravened Section 11 in relation to the Claimant.
Section 12(2) provides that an Employee is entitled to a 30 minute break having worked a period of more than 6 hours. On the evidence before it the Court is satisfied that the Respondent contravened this Section continuously during the cognisable period.
This Section provides that an Employer may not permit an Employee more than 48 hours in any week calculated over a reference period of, in this case, 6 months. Section 15(4) of the Act expressly provides that a period of annual leave must be disregarded. The records before the Court show than the Claimant’s average weekly working hours, when annual leave is excluded, over the cognisable period consistently exceed 48 hours. Accordingly the Respondent contravened Section 15 of the Act.
This Section provides that an Employer shall notify an Employee at least 24 hours in advance of a requirement to work overtime. The Respondent accepted before the Rights Commissioner that this Section had been contravened during the cognisable period.
For the reasons referred to above the Court finds that the Claimant’s complaints under the Act are well-founded. In measuring the quantum of compensation which is just and equitable having regard to all the circumstances the Court is mindful that the requirement to comply with the Act is a health and safety imperative and the entitlements of Employees under the Act constitutes an important social right under domestic and European law. However the Court can only have regard to such contraventions as occurred during the cognisable period.
Taking these factors into account the Court awards the Claimant compensation as follows: -
- •Contraventions of Section 11 - €800
•Contraventions of Section 12- €1000
•Contraventions of Section 15 - €1000
•Contraventions of Section 17- € 200
The Respondent is directed to pay the Claimant compensation in the total amount of €3,000
The Decision of the Rights Commissioner is varied accordingly
- •Contraventions of Section 11 - €800
Signed on behalf of the Labour Court
19th September, 2012______________________
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.