SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
EUPREIA LTD T/A DINGLE SKELLIG HOTEL & PENINSULA SPA
(REPRESENTED BY HR BUSINESS SOLUTIONS)
- AND -
MARTIN O' CONNOR
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Ms Jenkinson
Employer Member: Ms Cryan
Worker Member: Mr Shanahan
1. Appeal of Rights Commissioner's Decision r-125275-wt-12.
2. The Worker appealed the Rights Commissioner's Decision to the Labour Court on 21st January, 2013. A Labour Court Hearing took place on 2nd October, 2013. The following is the Labour Court's Determination:
The matter before the Court concerns the Worker’s appeal of a Rights Commissioner’s Decision under the Organisation of Working Act, 1997. As the Worker was not present at the hearing before the Rights Commissioner his claim was dismissed.
The Union on behalf of the Appellant explained to the Court the reasons for the failure to attend before the Rights Commissioner.
For ease of reference the parties are referred to as they were at first instance. Hence Mr Martin O’Connor is referred to as “the Complainant” and Eupreia Limited t/a Dingle Skellig Hotel is referred to as “the Respondent”.
The Complainant alleged that he did not receive his meal breaks and accordingly held that the Respondent was in breach of Section 12 of the Act. The Court was informed by the Complainant that a claim in respect of an alleged breach of Section 14 (Sunday Premium) was not being pursued and was therefore withdrawn.
The Complainant submitted a claim under the Act to the Rights Commissioner on 9thSeptember 2012.
Position of the Parties
Mr. Ger Kennedy, SIPTU on behalf of the Complainant alleged that during the six-month reference period covered by the claim that there were several occasions when the Complainant did not receive his breaks during his daily shift. The Complainant is employed as a Sous Chef, his normal working hours consists of 8 hours per day over 5 shifts. Mr Kennedy stated that there were no specified break periods within the daily shift and his ability to avail of break entitlements was dependent on the level of service being provided by the kitchen area and the demands of the business.
Mr Kennedy referred to a system introduced by the Respondent in May 2012 whereby workers were required to sign a sheet each week to confirm that they received their breaks. Mr Kennedy told the Court that for the first five or six weeks following this the Complainant received his statutory break, however, he said that there were several occasions during the reference period when the Complainant refused to sign the sheets as he had not received his break entitlement. Furthermore, he submitted that the records kept by the Respondent were not in compliance with S.I. No 473 of 2001.
Ms Caroline McEnery, HR & Business Solutions, on behalf of the Respondent stated that since the commencement of his employment the Complainant has been informed that his break entitlement would be given in accordance with the Act. She said that there was a message written at the bottom of each weekly roster outlining the statutory break entitlements and stating that if the worker had not received their break each day he/she should contact their manager. Ms McEnery stated that at no stage had the Complainant informed management of not receiving breaks. Furthermore, she stated that the Complainant was reminded of the necessity to take breaks at a meeting in October 2010 and in May 2012 the Respondent introduced a new system when it required employees to sign a sheet confirming that they had received their breaks. Ms McEnery furnished the Court with copies of the sheets for the period in question.
The Law Applicable
- 12.—(1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.
(2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).
Findings of the Court
The Complainant accepted that following a meeting with Management on 13thApril 2012 he received his requisite breaks for a period of between five or six weeks. The information sheets furnished to the Court cover the period from week ending 20thMay 2012 until 9thSeptember 2012, the date of claim. The Union in response to the information provided referred to the fact that four of the sheets were not dated, and it disputed the signature on a number of the sheets.
Having considered the oral and written submissions of both parties and having examined the information furnished to the Court, the Court is of the view that while procedures were put in place by the Respondent after May 2012 to record the Complainant’s breaks, and the Court is satisfied that in the main such breaks were taken by the Complainant, however, this was not a satisfactory method of recording due to the discrepancies identified by the Union. Furthermore the Court has not been provided with any records of breaks taken in the period from 10thMarch 2012 until the commencement of the information sheets in May 2012.
The Court therefore finds that the Respondent failed to discharge its obligation towards the employee and accordingly the Court finds that the Respondent was in breach of the Act.
Section 25(1) of the Act providesinter aliathat an employer is required to keep records“as will show whether the provisions of this Act are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making”.
Where an employer does not maintain records in accordance with Section 25(1) of the Act, Section 25(4) provides:-
- 4) Without prejudice to subsection (3), where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.
In the matter before it the Court has determined that the Respondent breached Section 12 of the Act.
The Court is required to follow the decision of the ECJ inVan Colson and Kamann ECR 1891 when considering awards of compensation.Van Colsonheld that “sanctions for breaches of Community Rights must be effective, proportionate and dissuasive – they must act as a disincentive against future infractions by the employer”.
In all the circumstances of this case and taking into account the nature and extent of the breach of Complainant’s rights under the Act and the Decision of the ECJ inVan Colson and Kamann ECR 1891the Court awards the Complainant the sum of €1,500.
The Decision of the Rights Commissioner is overturned, the Complainant’s appeal succeeds.
The Court so Determines.
Signed on behalf of the Labour Court
11th November, 2013______________________
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.