SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
(REPRESENTED BY MS MP GUINNESS, B.L., INSTRUCTED BY SMYTH
O' BRIEN HEGARTY, SOLICITORS)
- AND -
(REPRESENTED BY RICHARD GROGAN & ASSOCIATES)
Chairman: Ms Jenkinson
Employer Member: Ms Doyle
Worker Member: Mr Shanahan
1. An appeal against a Rights Commissioner's Decision no: r-140386-Wt-13/JW.
2. The Worker appealed the Rights Commissioner's Decision to the Labour Court on 14th July 2014 in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. Two Labour Court hearings took place on the 28th May 2015 and on the 1st September 2015. The following is the Determination of the Court.
This is an appeal by Mr. Marcin Zaskalski against a Decision of a Rights Commissioner in a claim made against his former employer, Kepak Athleague under the Organisation of Working Time Act, 1997 (the Act).
The Complainant submitted complaints alleging breaches by the Respondent under Sections 17 and 26 of the Act.
The parties are referred to in this Determination as they were at first instance. Hence, Mr. Marcin Zaskalski is referred to as “the Complainant” and Kepak Athleague is referred to as “the Respondent”.
In his Decision the Rights Commissioner found that the Complainant’s complaints were not well founded and therefore failed.
The Complainant worked as a Boner in the Lamb Boning Hall of the Respondent, a food processing Company. He was employed by the Respondent from 29thSeptember 2009 to 9thOctober 2013. Since November 2011 he had been paid on a Piece Rate system. The claim was referred under the Act to the Rights Commissioner on 2ndDecember 2013. The Complainant’s employment with the Respondent ended on 9thOctober 2013, hence, the cognisable period for the purposes of the within claims is from 3rdJune 2013 until 9thOctober 2013.
Summary of the Complainant’s Case
Mr. Richard Grogan, Richard Grogan & Associates, Solicitors, on behalf of the Complainant submitted that the Respondent was in breach of Section 17 of the Act as the Complainant was not provided with appropriate notification of the requirement to work overtime. Furthermore, Mr Grogan submitted that the Complainant was dismissed from his employment for refusing to work overtime contrary to the provisions of Section 26(1) of the Act where he did not get 24 hours’ notice. The Complainant worked overtime on four occasions within the cognisable period. He stated that the Respondent was in breach of the Act as no start and finish times were included in the contract of employment and he contended that a notice stating that there will be a coffee break at 4.30pm was not sufficient to indicate a finishing time. He disputed the Respondent’s reliance on the provisions of Section 17(4) of the Act whereby it asserts that certain overtime was due to unforeseen circumstances.
Mr Grogan accepted that overtime is a condition of the Complainant’s employment and a reasonable amount of overtime would have to be worked by him as set out in his contract of employment.
In support of his claim, Mr Grogan citedLucey Transport Limited v Marius SerenasDWT13141 the Court held:-
- “It seems to the Court that the underlying rationale of the provision is perfectly clear. It is directed at making a sensible distinction between situations in which an employee has a fixed starting and finishing times around which he or she can plan their private or family life and those who cannot do so due to the unpredictability of their work commitments. Where an employee has a contractual entitlement to a fixed starting and finishing time he or she cannot be obligated to start or finish work at any other time as any variation from the contractual term can only be by mutual agreement. Where, however, an employee’s starting and finishing time is determinable solely by the employer the law requires that in order to maintain some degree of work / life balance reasonable notice of starting and finishing times must be furnished by the employer.”
Mr Grogan submitted that the Respondent’s actions in subjecting the Complainant to a disciplinary process on 21stJune 2013 and his dismissal on 9thOctober 2013 was directly as a result of his refusal to work overtime and thereby constitute two separate and distinct acts of penalisation within the meaning of Section 26 of the Act. The Complainant sought to be reinstated.
Summary of the Respondent’s Position
Ms Mary Paula Guinness, B.L., instructed by Smyth O’Brien Hegarty Solicitors, on behalf of the Respondent denied the allegations made. Ms Guinness stated thatemployee’s contract provides for overtime as part of the terms and conditions of employment.During the course of his employment the Complainantcarried out reasonable overtime without issue and did so until the Piece Rate Agreement was introduced in November 2011, in agreement with the employee forum. Ms Guinness stated that production in the factory is subject to the cyclical nature of the industry and itis well known and accepted that there are peaks and troughs in production activity.In addition orders can arrive at the last minute which could not reasonably be foreseen.The Piece Rate system was introduced in order to improve competitiveness and efficiency in a very difficult economic climate. Prior to that the Boning Hall operated from 7am to 7pm with bonuses paid for hours worked. Under the new system the Boning Hall operated from 7.00am to 4.30pm with overtime until 6.00/6.30pm when required.
Ms Guinness said thateach Monday morning a roster was placed on the planning notice board for that week located in the hall for all employees to see which sets out, to the best ofthe Respondent's ability, the requirement for overtime forthat week which would be scheduled forlate afternoon on Tuesday orThursday thereby giving employees in
excess of 24 hours’ notice.The requirement to work overtime is indicated by the following "coffee break- 4.15 pm" on the relevant days which signifies that rather than finishing at 4.30/4.45 pm, overtime would continue until 6.00/6.30pm.She said that
when unforeseen matters arise additional overtime for other daysis notified as soon as is practical.The throughput for the weeks workis based on meeting targets and everyone attending work. However, Ms Guinness said that all employees complied with the requirement to work overtime, with the exception of two, the Complainant (and one other employee who is the subject of a separate claim under the Act)who regularly refused to work past 4.30pmand whowould leave the plant without telling anyone.
Ms Guinness stated that orders might come in at the last minute or a number of people mightcallin sick in which case overtime would be required and in those circumstances the Respondent notified the employees as soon as possible. She referred to the case ofMatrix Foods LtdvKlimenkovs (DWT0877)where the Court considered the issue of the failure to notify additional hours of work. In that case the Court was satisfied thatthe provision of rosters before the commencement of each week setting out the rostered
hours of work for the following week was sufficient for the purposes of this section.InMatrix Foodsthe employer had stated that the employee was expected to work the rostered hours, and any additionalhours were due to unforeseen circumstances beyond the employer's control, for example a driver not reporting to work.
Ms Guinnesstold the Court that there had been ongoing difficulties with the Complainant’s performance, he was issued with the following disciplinary sanctions, prior to the decision to dismiss him on 9thOctober 2013:-
- -24thJanuary 2013 - verbal warning for unauthorised absence in production on
- -23rdMay 2013 -verbal warning for refusing to work two hours overtime on
22ndMay 2013 and for leaving the workplace without authorisation
- -23rdMay 2013-firstwritten warning for refusing to work two hours overtime and for leaving the plant without authorisation
- -6thJune 2013 - a second written warning issued for refusal to work two hours
overtime and for leaving the plant without authorisation.
Ms Guinness told the Court that by letter dated 30thSeptember 2013, the Complainant asked the Respondent to indicate which two days he would be required to work overtime on an ongoing basis and further added“if you are no [sic] happy with my decision please give me all the money I should get after 5 years work in Kepak and then
P45". The Respondent replied on 2ndOctober 2013 explaining that due to thecyclical nature of the meat business, it was difficult toforecastincreases and decreases in the volume of work, therefore it was unable to indicate which two days overtime would be required per week.Ameeting was held on 4thOctober 2013 and the Complainant handed a written response in which he confirmed that he would only do overtime on two days a week and that if this was not acceptable he asked the Respondent to look into making him redundant.The Complainant was informed by letter from the Respondentdated 9thOctober 2013 that as he was refusing to work a reasonable amount of overtime it considered that he had repudiated his contract and therefore his employment was terminated. The letter informed him that there was a job there for him subject to him adhering to his terms and conditions of employment and there was no redundancy situation. He was given five working daysto appeal, this was extended to 23rdOctober 2013 but he chose not to appeal.
Evidence was given by the Complainant with the assistance of an Interpreter and by the former Operations Manager on behalf of the Respondent. The Complainant told the Court that notice of additional hours of work was placed on the notice board, this stated that there would be a coffee break at 4.15pm. This signified that instead of finishing at the normal time of 4.30pm, there would be a coffee break and employees would be expected to work overtime until 6.00pm/6.30pm. He said that this notice appeared after the lunch break on days when the additional hours work was required. The Complainant told the Court that this was how he was informed of overtime requirements and that he did not receive 24 hours’ notice as per section 17 of the Act.
The former Operations Manager (Mr Q) told the Court that a planning meeting was held each Monday morning to plan out the work for the week, which included planning for overtime when it was necessary and he said that a notice of overtime hours required for the week (if any) would be placed on the notice board in the boning hall on Monday mornings, indicated by the reference to a coffee breaks at 4.15pm. Mr Q told the Court that the Supervisor or Manager of the Boning Hall was responsible for placing the notice on the notice board.
Section 17 of the Organisation of Working Time Act relates to the provision of information in relation to working time.
Section 17 provides in relevant part:
- (2) If the hours for which an employee is required to work for his or her employer in a week include such hours as the employer may from time to time decide (in this subsection referred to as “additional hours”), the employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, case may be, the day, in that week on which he or she proposes to require the employee to work all or, as the case may be, any of the additional hours, of the times at which the employee will be required to start and finish working the additional hours on each day, or, as the case may be, the day or days concerned, of that week.
(4) A notification to an employee, in accordance with this section, of the matters referred to in subsection (1) or (2), as the case may be, shall not prejudice the right of the employer concerned, subject to the provisions of this Act, to require the employee to start or finish work or, as the case may be, to work the additional hours referred to in subsection (2) at times other than those specified in the notification if circumstances, which could not reasonably have been foreseen, arise that justify the employer in requiring the employee to start or finish work or, as the case may be, to work the said additional hours at those times.
(5) It shall be a sufficient notification to an employeeofthe matters referred to in subsection(1)and(2)for the employer concerned to post a notice of the matters in a conspicuous position in the placeofthe employee's employment.
- (1)an employer shall not penalise an employee for having in good faith opposed by lawful means an act which is unlawful under this Act.
(2) If a penalisation ofan employee, in contraventionofsubsection (1)
constitutes a dismissal ofan employee within the meaningofthe Unfair
Dismissals Acts 1977 to , relief may not be granted to the employee in respect ofthat penalisation both under this Part and under those Acts.
Findings of the Court - Section 17It was not disputed that the Complainant’s starting and finishing times were from 7.00am to 4.30pm each day, and that he was occasionally required to work additional hours to meet the exigencies of the Respondent’s business. An inherent feature of his employment as stipulated in his contract of employment was the requirement to work a reasonable amount of overtime. This was understood and accepted by the Complainant. However, on the four occasions referred to above, the Court is not satisfied that evidence has been submitted to demonstrate that the Complainant received notice, twenty-four hours in advance of the overtime, as required under the Act. In these circumstances the Court finds that the Respondent contravened Section 17 of the Act.
Findings of the Court - Section 26
The Complainant is seeking redress for penalisation within the meaning of Section 26 of the Act. In essence, the Complainant’s case is that he was dismissed for refusing to work overtime contrary to the provisions of Section 26(1) of the Act where he did not get 24 hours’ notice.
Section 26 of the Act provides that an employee who refuses to co-operate with an employer in breaching the Act shall not be penalised by the employer. In order to make out a complaint of penalisation it is necessary for the Complainant to relate his dismissal to his opposing an act which is unlawful under the Act.
The Respondent held that the Complainant was dismissed when he (i) refused to work a reasonable amount of overtime in accordance with his contract of employment in circumstances where he had worked such overtime in the previous five years and (ii) he had walked off the floor without notifying his supervisor on a number of occasions. The Respondent held that his refusal to work the overtime constituted a repudiation of his contract of employment and denied it was a form of penalisation under the Act.
The Court was supplied with copies of documentation from both sides outlining correspondence between the parties detailing the disciplinary sanctions taken against the Complainant and the events leading up to and including his dismissal.
The dismissal letter from the Respondent dated 9thOctober 2013 outlines the reasons for his dismissal. It stated that he was refusing to work reasonable amounts of overtime and he had walked off the floor without notifying his supervisor on a number of occasions. In such circumstances the Respondent held that he was repudiating his contract of employment and accordingly dismissed the Complainant.
The Court notes that no issue was raised by the Complainant with the Respondent concerning the non-provision of the statutory notice of additional hours, rather the Complainant was seeking to set a pattern of work he was prepared to do in order to suit his personal requirements. The Respondent indicated that it was not possible to facilitate him and accordingly his request was not feasible due to the exigencies of its business which make it very difficult to forecast throughput of its products.
The Court must examine whether a causal link has been established between his claimed activities in seeking to have Section 17 of the Act applied by the Respondent and the detriment he complains of. The activities alleged to have given rise to the detriment suffered must relate to the Complainant having opposed an act which is unlawful under the Act. In all the circumstances of this case, the Court is satisfied that the disciplinary measures taken disclose that the issues raised related to a refusal to comply with a contract of employment and to the conduct of the Complainant in leaving the workplace without permission, these are matters which the Court makes no findings on, however, it is satisfied that they are matters which are unrelated to the provisions of the Act.
By requiring the Complainant to work a reasonable amount of overtime and not to leave the workplace without being granted permission, the Court is satisfied that the Respondent was not seeking the Complainant to co-operate with it in breaching the Act. Therefore, the Court is satisfied that there was no penalisation as defined by Section 26 of the Act.
For the reasons set out herein the Court finds that the Complainant’s complaints alleging a contravention of Section 17 is well founded and awards the Complainant compensation of €1,000. The Court finds that the complaint alleging a contravention of Section 26 of the Act is not well-founded. Accordingly, the Complainant’s appeal is disallowed in part and the decision of the Rights Commissioner is varied.
Signed on behalf of the Labour Court
29th September, 2015Deputy Chairman
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.