FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : O' LEARY INTERNATIONAL LIMITED (REPRESENTED BY PENINSULA BUSINESS SERVICES IRELAND LTD) - AND - EGONAS BUTNEVICIUS (REPRESENTED BY O' BRIEN & ASSOCIATES) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal against Rights Commissioner's Decision r-095790-wt-11/MMG.
BACKGROUND:
2. A Rights Commissioner's hearing took place on the 17th February 2011 and a Decision was issued on the 8th January 2013.
The Employer appealed the Decision of the Rights Commissioner to the Labour Court on the 20th February 2013, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 15th April 2014.
DETERMINATION:
The Complainant brought a complaint before a Rights Commissioner pursuant to the Organisation of Working Time Act 1997 (the Act) alleging breaches of Sections 12 and 15 of the Act. The Rights Commissioner held that the Complainant had presented a valid complaint and awarded €3,000 in compensation.The Employer appealed the Decision to this Court.
For ease of reference the parties are referred to as they were at first instance. Hence Mr Egonas Butnevicusis referred to as “the Complainant” and O’Leary International Limitedis referred to as “the Respondent”.
The Complainant submitted a claim under the Act to the Rights Commissioner on 19thJuly 2010.
Background
The Complainant was employed by the Respondent from 14thOctober 2008 until 23rdApril 2010 as an International Truck Driver.
Summary of the Complainant’s Case
Mr. Kieran O’Brien, O’Brien & Associates, Solicitors, on behalf of the Complainant, submitted that the Complainant was not afforded the appropriate rest periods during his employment and that he had worked in excess of 9 hours per day and 90 hours per fortnight in breach of Sections 12 and 15 of the Act. He submitted that the onus was on the Respondent to prove compliance with the relevant statutory provisions.
Summary of the Respondent’s Case
Mr. Aidan Phelan, Peninsula Business Services (Ireland) Limited, on behalf of the Respondent, stated that the Respondent was not aware of any alleged breach of the Act until weeks after the Complainant abandoned his truck in the UK and resigned without notice. He stated that the Complainant was made aware of the requirements to take breaks as outlined in the Company Handbook and the Complainant was fully informed of the requirements of tachograph use. Mr. Phelan said that the Respondent is strictly monitored by the RAS, VOSA and other similar European bodies against the Drivers’ Rules and heavy sanctions are imposed on the driver for transgressions.
Findings of the Court
Based on the Complainant’s submission before the Court, the Court was not satisfied that the complaints under the Act had been sufficiently expressed to establish aprima faciecase under the Act regarding the alleged contraventions of the Act by the Respondent.
Therefore, with the assistance of an interpreter, the Complainant gave evidence under oath to the Court. The witness said that some time during the Spring of 2009 when he was on the ferry from the UK to Dublin he received a telephone call from work during his rest period. Furthermore he said that at the end of March/April 2010 a fine was sent from Germany to the Company for breach of tolls. Finally the witness said that in September/October 2009 while he was in the process of delivering a load to Lyons from Calais he was required to change trucks during the night and drive to Calais without rest.
Having examined the evidence given the Court is not satisfied that the Complainant has adduced evidence to support a stateable case of non-compliance by the Respondent under the Act and accordingly the Court finds that the complaints are not well-founded.
Determination
The Decision of the Rights Commissioner is overturned and the appeal succeeds.
Signed on behalf of the Labour Court
Caroline Jenkinson
12th May, 2014______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.