FULL RECOMMENDATION
SECTION 28 (1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : THE CARAMBOLA LIMITED (REPRESENTED BY MANAGEMENT SUPPORT SERVICES (IRELAND) LIMITED) - AND - MATUESZ WROBEL (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Haugh Employer Member: Mr Murphy Worker Member: Mr McCarthy |
1. Appeal of Adjudication Officer Decision No: ADJ-00007750 CA-000010401-001/002
BACKGROUND:
2. An Adjudication Officer hearing took place on 8 August 2017 and a Decision was issued on 16 November 2017.
The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 12 December 2017 in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 2 May 2018. The following is the Court's Determination:-
DETERMINATION:
Background to the Appeal
This is an appeal by Mr Matuesz Wrobel (‘the Complainant’) against a decision of an Adjudication Officer (ADJ-00007750, dated 16 November 2017) under the Organisation of Working Time Act 1997 (‘the Act’). The Adjudication Officer held that the Complainant’s claim that his employer, The Carambola Limited (‘the Respondent’), had failed to comply with section 17 of the Act in his case was not well-founded. The Notice of Appeal was received by the Court on 12 December 2012. The Court heard the appeal in Limerick on 2 May 2018.
Submissions of the Parties
The Complainant’s contract of employment – under the heading ‘Hours of Work’ – provides as follows:
- “Hours of work are as per your weekly rota … The company reserves the right to change these working hours should circumstances require it. As much notice as possible of any such change will be given to you.
On occasions, however, despite the best efforts of the Company, little, if any, notice will be possible and you should be aware of same. Agreement to work such overtime should not be reasonably (sic) withheld. Refusal to work overtime, where such refusal disrupts the Company’s business and Company, may become a disciplinary matter.”
The complaint was received by the Workplace Relations Commission on 24 March 2017. The relevant period encompassed by the complaint is therefore 25 September 2016 to 24 March 2017. The Complainant’s evidence to the Court was that his normal working hours during the period in question were from 3.00 p.m. until 12.00 midnight each working day. However, he submits that his start and finish times were changed on a number of occasions and he did not receive notice of those changes in the manner prescribed by section 17(2) of the Act. He further submits that the Respondent failed to post a notice of the changes to the roster “in a conspicuous position” in his place of employment as provided for in section 17(5). The Complainant claims that he was financially disadvantaged and received reduced wages on the occasions his finishing time was brought forward and suffered disruption to his social life when his working time was extended. He submits that the Respondent cannot avail of the limited exemption from the strict application of section 17, provided for in subsection (4) of that section, as no “circumstances, which could not reasonably have been foreseen” arose in relation to his employment that justified the Respondent in requiring him, at short notice, to change his start and/or finish time(s).
The Union has referred the Court to a number of its previous determinations (DWT1450, DWT13102 and DWT12170) which the Union submits support the within appeal on behalf of the Complainant.
Mr John Barry of Management Support Services (Ireland) Limited, for the Respondent, submits that its business is demand-driven. The Respondent prepares sandwich-based lunch packs for distribution to DEIS schools throughout the country. The lunches are ordered on-line on a daily or weekly basis by parents and are prepared for delivery on a daily basis.
The Complainant is employed as a production operative in the Respondent’s food production area. Mr Barry told the Court that the Complainant (along with his colleagues) is rostered on a weekly basis and the roster for the following week is normally posted on a Thursday. He also told the Court that, because of the need to make accommodation on a daily basis for possible variations in the volume of orders and for other unforeseen events such as breakdowns, the roster as posted contains the following statement: “Hours of work are approximate and would normally vary 1.5 hours each way”. He submits that such matters come within the scope of the exemption provided for in section 17(4).
The Law
Section 17 of the Act provides:
- “(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 to subsection (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 to subsection (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.
(3) If during the period of 24 hours before the first-mentioned or, as the case may be, the second-mentioned day in subsection (1) or (2), the employee has not been required to do work for the employer, the time at which the employee shall be notified of the matters referred to in subsection (1) or (2), as the case may be, shall be not later than before the last period of 24 hours, preceding the said first or second-mentioned day, in which he or she has been required to do work for the employer.
(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 employee of the matters referred to in subsection (1) or (2) for the employer concerned to post a notice of the matters in a conspicuous position in the place of the employee's employment.”
Discussion and Decision
The only issue which falls to be determined by the Court in this appeal is whether or not the fluctuation in the volume of orders placed with the Respondent for its packed lunches amounts to ‘circumstances which cannot reasonably be foreseen’ such that the Respondent can rely on section 17(4) of the Act to justify varying the Complainant’s finishing times. The Court does not accept that the Respondent has made out such a case. In all the circumstances, therefore, the Court finds that the appeal succeeds and it measures the appropriate compensation payable to the Complainant at €350.00. The decision of the Adjudication Officers is set aside.
The Court so determines.
Signed on behalf of the Labour Court
Alan Haugh
JD______________________
15 May 2018Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Deegan, Court Secretary.