SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
NURENDALE LTD T/A PANDA WASTE
(REPRESENTED BY MICHAEL SHANLEY)
- AND -
(REPRESENTED BY RICHARD GROGAN & ASSOCIATES)
Chairman: Mr Duffy
Employer Member: Ms Cryan
Worker Member: Ms Tanham
1. Appeal of Rights Commissioner's Decision R-130761/62/63/64/65/66/67/68/73/74/75/76-Wt-13/JW.
2. The case before the Court concerns a dispute between the Employer and the Worker in relation to the Employer's alleged breach of several sections of the Organisation of Working Time Act, 1997. The Worker contends that he did not receive his statutory entitlements owing to him under the Act in respect of breaks, rest periods between shifts, notice periods in terms of finishing times of work, appropriate payment for Sunday working hours and sufficient payment for annual leave. The Worker further contends that he was required to work hours in excess of statutory limits. The Employer refutes the Worker's claim and agreement could not be reached. The matter was referred to a Rights Commissioner for investigation. On the 20th November, 2013, the Rights Commissioner issued his Decision as follows:
"Based on the evidence presented at the Hearing, I find that the complaint is well-founded".
The Rights Commissioner awarded a compensatory amount to be paid to the Worker within six weeks of the date of issuing his decision. The Worker subsequently 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 November, 2013. The Court heard the appeal on the 6th February, 2014, the earliest date suitable to the parties. The following is the Determination of the Court:
This is an appeal by Andrei Suvac (the Claimant) against the decision of a Rights Commissioner in his claim under the Organisation of Working Time Act 1997 (the Act) against Nurendale Limited, trading as Panda Waste Services (the Respondent)
The Claimant contends that sections 11, 12, 14(1), 15(1) 17 and 20(1) of the Act were contravened in relation to him during the currency of his employment with the Respondent.
According to the decision of the Rights Commissioner the Claimant particularised his claims as follows: -
•In relation to the claimed contravention of s.11 of the Act the Claimant contended that he was required to work without the 11hours break between his finishing time on one day and his commencement time on the following day on 16 occasions between 16thOctober 2012 and 5thDecember 2012.
•In relation to the claimed contravention of s.12 of the Act the Claimant contended that he was not afforded breaks of 15 minutes when he worked for over 4 hours and 30 minutes nor was he provided with breaks of least 30 minutes when he worked for more than a period of 6 hours.
•In relation to the claimed contravention of s.14(1) of the Act the Claimant contended that he was required to work on two Sundays, namely, 11thand 18thNovember 2012 and that he was not paid a premium in respect of working on those days.
•In relation to the claimed contravention of s.15 of the Act the Claimant contended that he was required to work in excess of an average of 48 hours per week. He contended that in a period of 19 weeks commencing on 12thOctober and ending on 15thFebruary 2013, he worked an average of 56.93 hours per week.
•In relation to the claimed contravention of s.17 of the Act the Claimant contended that he was not furnished with notification of his finishing time at least 24 hours in advance on occasions on which he was required to work beyond his normal finishing time.
•In relation to the claimed contravention of s.20 (1) of the Act the Claimant contends that his pay in respect to annual leave was calculated on the basis of a 40 hour working week rather than by reference to his actual working hours of 56.93 per week in the 19 weeks preceding the cessation of his employment. The Claimant claimed that the shortfall in payment amounted to €334.49.
The Rights Commissioner found for the Claimant and awarded him compensation as follows: -
•€1,500 for breaches of s.11 of the Act,
•€700 for breaches of s.12 of the Act
•€208 for breaches of s.14 (1) of the Act
•€1,500 for breaches of s.15(1) of the Act
•€500 for breaches of s.17 of the Act
•€334 for breaches of s.20(1) of the Act
The Claimant appealed against the quantum of the award claiming that it was inadequate having regard to the gravity of the contraventions found to have occurred.
The Respondent’s position.
The position of the Respondent before the Rights Commissioner and before the Court on appeal was that the contraventions found to have occurred arose in circumstances which provide it with a complete defence under s.5 of the Act. According to the Respondent, a fire occurred at its premises in or about June 2012. That fire destroyed a major part of its plant. Its insurers did not cover the loss. It was imperative that the plant be rebuilt as quickly as possible so as to maintain the viability of the business and maintain employment. The Respondent also submitted that there were broader social imperatives associated with restoring its waste disposal facility as quickly as possible.
The Claimant was employed as a fitter. He was engaged in the demolition and rebuilding of the plant. It was the Respondent’s case that the exigencies of the work required the Claimant to continue working so as to complete certain tasks which could not be interrupted. According to the Respondent the Claimant undertook this work willingly and without demur.
The Respondent submitted that s.5 of the Act operates to provide it with a complete defence to the within claims. In the alternative, the Respondent submitted that the circumstances upon which it relies are a mitigating factor which should be taken into account by the Court in measuring redress.
On the facts of this case the principal question for consideration is whether the Respondent can avail of s.5 of the Act to excuse what would otherwise be contraventions of the sections of the Act relied upon.
Section 5 of the Act provides: -
- 5.—Without prejudice tosection 6, an employer shall not be obliged to comply withsection 11,12,13,16or17where due to exceptional circumstances or an emergency (including an accident or the imminent risk of an accident), the consequences of which could not have been avoided despite the exercise of all due care, or otherwise to the occurrence of unusual and unforeseeable circumstances beyond the employer's control, it would not be practicable for the employer to comply with the section concerned.
The Act transposed in Irish law the provisions of what is now Directive 2003/88/EC concerning certain aspects of the organisation of working time. It is trite law that in interpreting and applying a provision of domestic law the Court must do so in light of the wording and purpose of a Directive so as to produce the result envisaged by the Directive (Marleasing S.A. v La Commercial Internacional de Malimentacion S.A. ECR 4135)
Section 5 of the Act gives effect to Article 17(1)(g) of the Directive which provides for a derogation from the provisions of the Directive that correspond to the sections of the Act referred to at s.5 thereof. The derogation applies “in cases of accident or imminent risk of accident”.
In Case C- 476/99Lommers v Minister van Landbouw, Natuurbeheer en VisseriIRLR 430 paragraph 39, the CJEU pointed out that in applying a derogation due regard must be had to the principle of proportionality, which requires that derogations must remain within the limits of what is appropriate and necessary in order to achieve the aim in view.
It seems to the Court that s.5 of the Act, read in conjunction with Article 17(1)(g) of the Directive, is intended to apply in circumstances in which it is not practicable to comply with the Act in order to undertake work in the immediate aftermath of an accident or where there is an imminent risk of accident. That suggests a close temporal nexus between the accident and the work in question.
The Court can accept that the fire at the Respondent’s premises constituted an accident. The rebuilding work in which the Claimant was engaged was necessary in consequence of the accident. However, the fire occurred in June 2012. The Claimant commenced his employment in September 2012 and the contraventions complained of occurred between October 2012 and February 2013. The Respondent understandably wished to have the work completed as quickly as possible for the reasons explained to the Court. Section 5 of the Act, and Article 17 of the Directive, allow for a derogation from an important duty imposed on employers for reasons of protecting the health and safety of workers. Consequently it must be construed narrowly. In these circumstances the Court cannot accept that the exigencies of the business, or the broader social implications of the plant’s operation, can come within the intendment of s. 5 of the Act so as to relieve the Respondent of liability to comply with the relevant provisions of the Act.
The Claimant’s Contract of Employment
The Claimant’s contract of employment was in writing. His working hours were specified at Clause 2 of the contract. It provided: -
- “Hours of Work
You will be required to work such hours as may be reasonable for the proper performance of your duties. In general, your pattern of work and hours will be determined by reference to the business requirements of Panda Waste Services with due regard to your health, safety and general well-being. Within those work patterns, normal start and finishing times, attendance, time off in lieu, days off etc. will be notified and clearly identified with you by consultation.
Panda Waste will work with you to balance both business requirements and your personal and family commitments
Your typical hours will be on a rostered basis between 8am and 6pm, Monday to Friday. In compliance with the Organisation of Working Time Act 1977 [sic] you will work no more than an average of 48 hours per week, averaging of which shall take place over the appropriate reference period. Additionally, during your working day you are entitled to an unpaid rest break of 15 minutes mid morning and 30 minute lunch break. Total rest breaks amounting to no more than 45 minutes. You are required to keep accurate records of your working time and rest breaks during each working day in accordance with Panda Waste Services work practice.
Panda Waste Services reserves the right to require you to work additional hours to those depending to the reasonable requirements of the Employer. Flexible working hours is a feature of the job but where those hours are excessive, time off in lieu will be consideredORyou will be paid a flat hourly rate for each hour of overtime or part thereof”
It is also noteworthy that this contract appeared to place an obligation on the Claimant to maintain records of his working time and breaks. Section 25 of the Act places that obligation on an employer. It cannot be transferred by contract or otherwise to an employee so as to relieve the employer from its statutory duty to comply with that section.
Finally, the Court notes that the final paragraph of the contract, recited above, reserve to the Respondent a right to require the Claimant to work in excess of the hours referred to in the penultimate paragraph, namely, 48 per week. That provision, in so far as it purported to allow the Respondent to require the Claimant to work beyond the number of hours permitted by s.15 of the Act, was void and of no effect. That is clear from s.37 of the Act which provides: -
- 37.—Save as expressly provided otherwise in this Act, a provision in an agreement (whether a contract of employment or not and whether made before or after the commencement of the provision concerned of this Act) shall be void in so far as it purports to exclude or limit the application of, or is inconsistent with, any provision of this Act.
Section 25(1) of the Act provides: -
- An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, 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.
- 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.
No such evidence was adduced by the Respondent. Accordingly, the Court accepts that the Respondent did contravene the Act in the manner alleged by the Claimant.
Section 27(3)(c) of the Act allows for an award of compensation of such amount (if any) as is just and equitable having regard to all the circumstances. The Court is also conscious of the jurisprudential requirement in European law to measure compensation in an amount that is effective proportionate and dissuasive. The Court has taken account of the submissions made on behalf of the Claimant in which it was urged to hold that the quantum of compensation awarded by the Rights Commissioner does not adequately meet this statutory and jurisprudential criteria. The Court has also considered the submissions advances on behalf of the Respondent to the effect that the circumstances in which these infractions occurred are a mitigating factor.
The Respondent undoubtedly organised the Claimant’s working time with little or no regard to its legal duty under the Act. That is a serious matter in that it potentially imperilled the Claimant’s health and safety at work. However, it is also clear that the Claimant participated in this illegality by willingly working the excessive hours. Moreover, there was no evidence to indicate that the Claimant took any action during the currency of his employment to assert his rights under the Act and he only did so after his employment terminated.
These factors do not in any sense excuse the Respondent from liability for its wrongdoing. But they are of relevance in measuring the amount of compensation that is just and equitable in all the circumstances.
Having considered the matter fully and having taken account of all of the submissions advanced on behalf of both parties, the Court has come to the conclusion that the quantum of the awards made by the Rights Commissioner should be modified in respect of the contraventions of sections 11 and 15 of the Act.
Accordingly the Court measures the level of compensation that is just and equitable as follows: -
•€2,000 for breaches of s.11 of the Act
•€700 for breaches of s. 12 of the Act
•€208 for breaches of s. 14(1) of the Act
•€2,000 for breaches of s.15 of the Act
•€500 for breaches of s.17 of the Act
•€334 for breaches of s.20(1) of the Act
The decision of the Rights Commissioner is varied accordingly.
Signed on behalf of the Labour Court
19th February 2014______________________
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.