FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 28 (1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : YUPON LTD - AND - MARTINS LACPLESIS (REPRESENTED BY RICHARD GROGAN & ASSOCIATES SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Tanham |
1. Appeal of Adjudication Officer's Decision No. R-159157-WT-15/EH.
BACKGROUND:
2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997 on 9th May, 2016. A Labour Court hearing took place on 23rd June, 2016. The following is the Determination of the Court:
DETERMINATION:
This is an appeal by Mr Martins Lacplesis against the Adjudication Officer’s Decision r-159157-wt-15/EH in claims against his former employer Yupon Limited under the Organisation of Working Time Act 1997 (“the Act”). The Adjudication Officer upheld the Complainant’s claim in part and awarded compensation of €230.00.
The parties are referred to in this Determination as they were at first instance. Hence, Mr Martins Lacplesis is referred to as “the Complainant” and Yupon Limited is referred to as “the Respondent”.
Background
The Complainant was employed as a Sous Chef from 30thApril 2014 until 31stMay 2015. He was paid €34,000 per annum. The Complainant claimed that the Respondent was in breach of Sections 12, 13(5), 14, 17 and 19 of the Act. A claim alleging a breach of Section 21 of the Act was withdrawn by the Complainant’s representative at the hearing of the appeal on 23rdJune 2016. The complaint was referred to the Workplace Relations Commission on 3rdSeptember 2015.
Mr Richard Grogan, Richard Grogan & Associates, Solicitors, on behalf of the Complainant submitted that the Respondent was in breach of the following:-
Section 12- breaks at work
The Complainant worked from 6.00am to 3.30pm - 4.00pm and normally had a break of 30 minutes between 10.30am and 11.00am, however, Mr Grogan submitted that he did not receive his break on four occasions in the cognisable period.He submitted that the Decision of the Adjudicator to award him the sum of €150.00 as compensation for the Respondent’s breach of the Act was insufficient.
The Respondent stated that the Complainant took his breaks at the same time every day i.e. from 10.30am to 11.00am.
Having considered the submission made and the evidence given, the Court concurs with the Adjudication Officer’s finding.
The Court held inIrish Waterthat“compensation, if any, must be within the bounds of what is fair and equitable having regard to all the circumstances”. In the instant case, taking all factors into account, the Court can see no reasonable or justifiable basis upon which it could interfere with the level of compensation awarded by the Adjudication Officer and accordingly upholds the award of €150.00 for the breach of Section 12 of the Act.
Section 17notification of his finishing times
Mr Grogan submitted that the Respondent was in breach of Section 17 of the Act as the Complainant did not know his finishing times. He contended that the Respondent was in breach of Section 17 as it was unable to provide records of the Complainant’s rosters.
The Respondent told the Court that the Complainant worked a standard 6.00am to 2.00pm shift every day as this was an arrangement he sought as it suited his travel arrangements. The Respondent stated that there may have been busy days from time to time when longer hours may be required, however, it knew its busy days in advance as the Company would have prior notice from its customers. There were also occasions when the Complainant was required to work shorter days depending on business needs.
The Complainant in his evidence stated that depending on the level of work required on any given day, he worked until he finished his duties, and he said that this was normally between 3.00pm and 4.00pm and on occasions, especially on Fridays, he could work until 6.00pm.
The Court notes that the Complainant has not submitted a claim under Section 15 claiming that he worked excessive hours. The claim before the Court is under Section 17 claiming that he did not receive the required notification of additional hours. The Respondent did not provide data to support its assertion that such notification was given to the Complainant in accordance with Section 17 of the Act.
Accordingly, the Court is satisfied on the evidence that the Complainant was not notified of his finishing times in accordance with Section 17 of the Act and award the Complainant the sum of €300.00.
Section 14 Claim - working on a Sunday
Mr Richard Grogan submitted that the Complainant worked one Sunday in the cognisable period, i.e. on 15thMarch 2015, and did not receive a Sunday premium.
The Respondent disputed this contention and stated that the work area the Complainant worked in did not operate on a Sunday. It stated that it had planned to open on a Sunday but the Complainant had refused to work it and therefore the Sunday shift never commenced.
The Adjudication Officer found on the balance of probability due to the conflict of evidence on this matter that he did work one Sunday by personal arrangement and was not paid a Sunday premium. Therefore the Adjudication Officer awarded the sum of €30.00 in compensation for the breach of the Act.
Mr Grogan submitted that the Decision of the Adjudicator to award him the sum of €30.00 as compensation for the Respondent’s breach of the Act was insufficient.
Having considered the submissions made, the evidence given and in all the circumstances present here the Court concurs with the Adjudication Officer’s finding and upholds the award of €30.00 for the breach of Section 14 of the Act.
Section 13 (5) - Sunday as a rest day
Section 13 (5) of the Act provides that a worker is entitled to Sunday as a rest day unless it is otherwise provided for in the employee’s contract of employment. The Respondent disputed the Complainant’s contention that he ever worked on a Sunday and in any event it stated that the Complainant’s contract of employment is clear as it states that he may be required to work at weekends.
The Adjudication Officer held that this claim failed. The Court finds no grounds to amend that finding and accordingly upholds his Decision under Section 13(5) of the Act.
Section 19(3) - entitlement to unbroken period to two weeks off
Section 19 (3) of the Act provides that an employee who works eight or more months in a leave year shall be entitled to annual leave including an unbroken period of two weeks leave which is subject to the provisions of certain agreements.
Mr Grogan submitted that the Respondent was in breach of Section 19(3) of the Act as the Complainant, who had over eight months' service, did not receive two unbroken weeks’ annual leave.
The Respondent disputed the contention that it was in breach of the Act. It stated that the Complainant had requested to take two weeks’ annual leave in June 2015, however, his employment ended on 31stMay 2015, therefore he never got to avail of the two unbroken weeks’ annual leave. This was not disputed by Mr Grogan, however, he held that it was irrelevant as there was a health and safety obligation on the Respondent to ensure the Complainant received his entitlement under Section 19(3) of the Act.
The Adjudication Officer found that there was a breach of the Act as the Respondent had not fulfilled its obligation to ensure that the Complainant had two unbroken weeks’ annual leave in the leave year from 1stApril 2014 to 31stMarch 2015 and awarded the sum of €50.00 in compensation. Having considered the submissions made, the Court concurs with the Adjudication Officer’s finding and upholds the award of €50.00 for the breach of the Act.
DETERMINATION :
The Court determines that the Respondent must pay the Complainant the sum of €530.00 as compensation in respect of the breaches of the Act. This payment should be made within six weeks of the date of this Determination. Accordingly, the Court for the most part upholds the Adjudication Officer’s Decision and upholds one part of the Complainant’s appeal.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
28th July 2016______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.