SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
KILSARAN CONCRETE LIMITED
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
(REPRESENTED BY RICHARD GROGAN & ASSOCIATES, SOLICITORS)
Chairman: Mr Hayes
Employer Member: Mr Murphy
Worker Member: Ms Tanham
1. An appeal against a Rights Commissioner's Decision no. r-147996-wt-14/MH.
2. The Worker appealed the Rights Commissioner's Decision to the Labour Court on the 26th August 2015 in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. Three Labour Court hearings took place on the 30th October 2015, 15th March 2016 and on the 14th July 2016. The following is the Determination of the Court.
This is an appeal under section 28(1) of the Organisation of Working Time Act 1997, by Mindaugas Viskontis (the Complainant) against a decision of the Rights Commissioner r-147996-wt-14/MH issued on 24 July 2015. The Complainant appealed to this Court on 26 August 2015. When the case came on for hearing before the Court on 30 October 2015 the Complainant’s Solicitor produced a large amount of documentation that the other side had not seen. The Court adjourned the hearing to allow the parties to exchange all documentation on which they were relying. The matter came before the Court again on 1 June 2016. However on this occasion the Respondent Company was not in a position to proceed as personnel changes had caused confusion regarding the documentation before the Court. The matter finally came before the Court on 14 July 2016. It was accepted that the Complainant was not driving but working in the office for most or all of the reference period covered by his complaint and his appeal under the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations S.I. No 36/2012 was accordingly withdrawn at the hearing.
Decision of Rights Commissioner
The Rights Commissioner decided that the complainant was not in attendance when the case was called and dismissed the complainants before him for want of prosecution.
The Complainant was originally employed by Cemex Ltd. That company was taken over by Kilsaran Concrete Ltd. Arising out of the same facts the Complainant initiated proceedings against both Cemex Ltd and Kilsaran Concrete Ltd. When the matter came before the Court Kilsaran Concrete Ltd accepted liability for all matters before it. The complaints against Cemex Ltd were then withdrawn.
Organisation of Working Time Act
The Complainant submits that the Respondent infringed section 12 of the Act. He gave evidence to the Court that he was required to work continuously from the time he reported for work each morning until he finished work in the evening. He was free to take breaks as he chose but was required to be permanently available to answer the phone to take orders from customers. He submits that he was therefore not free to dispose of his time as he wished. He further submits that he was not aware at the commencement of a break when it would be interrupted by a phone call. He submits that he therefore did not receive breaks within the meaning of section 12 of the Act.
The Respondent told the Court that it could not offer any evidence to contradict the complainant’s evidence.
Section 12 of the Act in relevant part states
- 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
Based on the unchallenged and uncontroverted evidence of the Complainant the Court finds that the complaint is well founded.
The Court determines that the complaint is well founded. The Court orders the respondent to pay the complainant compensation in the sum of €2,000.
The Court so determines
Section 15 Complaint
The Complainant told the Court that in the relevant reference period he was required to work in excess of an average of 48 hours per week. He also produced copies of his pay slips which supported his evidence in this regard.
The Respondent told the Court that it was not in a position to offer any evidence to contradict the evidence of the Complainant. It stated however that since it took over the company the Complainant’s hours conform to the Act.
Section 15 of the Act in relevant part states
- 15.—(1) An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period ”) that does not exceed—
(a) 4 months, or
Findings of the Court
The Court accepts the Complainant’s evidence. The Court notes that it was neither challenged nor contradicted.
Based on the uncontroverted evidence of the Complainant the Court finds the complaint well founded.
The Court orders the Respondent to pay the Complainant compensation in the sum of €4,000 for infringing his rights under section 15 of the Act.
Section 17 Complaint
The Complainant told the Court that he was aware of his starting time each day but could never tell what time he would finish his shift. He gave evidence that he worked until the phone stopped ringing. He said that this varied by up to as much as 90 minutes from day to day.
The Respondent told the Court that it was not in a position to contradict the evidence before it. It told the Court however that since it took over the Company its practices conform to the terms of the Act.
Section 17 of the Act in relevant part states
- 17.—(1) If neither the contract of employment of the employee concerned nor any employment regulation order, registered employment agreement or collective agreement that has effect in relation to the employee specifies the normal or regular starting and finishing times of work of an employee, the employee’s employer shall notify the employee, subject tosubsection (3), at least 24 hours before the first day or, as the case may be, the day, in each week that he or she proposes to require the employee to work, of the times at which the employee will normally be required to start and finish work on each day, or, as the case may be, the day or days concerned, of that week.
(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 tosubsection (3), at least 24 hours before the first day or, as the 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.
The Court accepts the Complainant’s evidence. The Court notes that it was neither challenged nor contradicted by the Respondent. Accordingly the Court finds that the complaint is well founded.
The Court orders the Respondent to pay the Complainant compensation in the sum of €2,000.
The Complainant submits that the pay slips disclose that the Respondent underpaid him in respect of his Public Holiday entitlements in the relevant statutory reference period. He provided copies of pay slips to support the complaint.
The Respondent accepted that the pay slips appeared to support the Complainant’s case.
Statutory Instrument no SI 475/1997 regulates the manner in which pay for Public Holidays is calculated. It states in relevant part.
(1) The normal weekly rate of an employee's pay, for the purposes of sections 20 and 23 of the the Act (hereafter in this Regulation referred to as the "relevant sections"), shall be determined in accordance with the following provisions of this Regulation.
(2) If the employee concerned's pay is calculated wholly by reference to a time rate or a fixed rate or salary or any other rate that does not vary in relation to the work done by him or her, the normal weekly rate of his or her pay, for the purposes of the relevant the employee but excluding any pay for overtime) that is paid in respect of the normal weekly working hours last worked by the employee before the annual leave (or the portion thereof concerned) commences or, as the case may be, the cesser of employment occurs.Findings of the Court
The evidence before the Court was that the Complainant’s pay was calculated wholly by reference to a time rate and did not vary in relation to the work done by him. Accordingly payment for Public Holidays should be calculated by dividing his normal weekly pay by his normal weekly hours of work. When determining normal weekly pay and hours of work overtime one must be excluded from the calculation.
In this case the Complainant told the Court that he worked variable hours each week. Those hours were in the nature of additional hours and accordingly must be classified as overtime. Accordingly they cannot be taken into account when deciding his pay entitlement for Public Holidays. Instead his normal weekly hours consisted of an eight hour day by five days per week.
It would appear from the evidence before it that the Respondent calculated his Public Holiday Pay in accordance with those hours. Accordingly the Court must find that the complaint is not well founded.
The Complaint is not well founded.
In total therefore, the Court finds the indicated claims are well founded and awards a total of €8,000 compensation as set out above.
The Court so determines.
Signed on behalf of the Labour Court
27th January, 2017.Deputy Chairman
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.