We focuse on two recent Labour Court decisions: one relating to the hours and breaks that may, or may not, be counted under minimum wage legislation; the other relating to a request to work reduced hours during pregnancy.


Introduction

Although the legislation provides for it, complaints made to a Rights Commissioner (RC) under the National Minimum Wage Act 2000 (NMW) are comparatively few in number. Accordingly, appeals to the Labour Court under this heading from decisions of RC’s are even rarer. This is because the Labour Inspectorate that is now part of the National Employment Rights Authority (NERA) carries out a substantial amount of inspection work in terms of policing the minimum wage legislation.

In the course of this work, it recovers quite an amount of money on behalf of employees by way of shortfalls in payment. For example, in 2009, NERA carried out nearly 3,000 inspections under the NMW and recovered almost €300,000 in underpayments. This email however features an appeal to the Labour Court from an RC under this legislation. The core issue that fell for decision in this case was whether a bus driver’s working hours for the purposes of the NMW include not just the time that he spent driving but also the hours in between trips where he remained with, looked after and maintained his vehicle.

This email also features a recent appeal to the Court from an RC under the Safety, Health and Welfare at Work Act 2005. The complainant in this case, a pregnant employee, claimed that her employer’s refusal to accede to a request to work reduced hours during her pregnancy because of her previous medical history in this regard, amounted to penalisation under that Act which eventually resulted in her resignation from her employment.


1. Case Name and Reference: Slieve Bloom Coach Tours and O’Reilly (MWA/10/4, Determination No.MWD109, July 23rd, 2010)

Court or Tribunal: Labour Court

Legislative Reference: National Minimum Wage Act 2000

Jurisdictions/Subject Matter: Working hours for the purpose of calculating the national minimum wage.

The complainant in this case, a bus driver, alleged that he worked 75 hours per week between April 2008 and August 2009 and received considerably less than the minimum wage when his gross wage was divided by the number of hours that he worked. His complaint to a Rights Commissioner (RC) was upheld on his uncontested evidence, as the respondent employer failed to attend the hearing. He was awarded €15,657 to compensate for the shortfall in payments. The respondent appealed this decision to the Labour Court.

The respondent gave evidence that the complainant was required to carry out four bus runs per day, six days a week and that in between each of these runs he was not carrying out or performing the activities of his work nor was he required to be available for work. It submitted that these breaks in between trips amounted to a total of five hours and twenty minutes per day. The respondent suggested that the complainant was aware that he was entitled to take this time as rest periods but it accepted that the complainant was not informed that he would not be paid for these breaks. It also accepted that he was not provided with a written contract of employment or a written statement of terms of employment as required by the Terms of Employment (Information) Act 1994, which would have set out his hours of work and the breaks to which he was entitled.

The complainant gave evidence that during the break periods between journeys, he was engaged in fuelling, defrosting and cleaning the bus and he was also required to reconcile cash from payments made by passengers. He also stated that it was not practical to take the breaks between journeys as rest periods as he was often parked in rural locations with no facilities nearby. He also said that he could not leave the vehicle in any case as it could not be locked.

The Court examined Section 8 of the minimum wage legislation which provides that for the purpose of determining whether an employee is being paid the minimum rate, working hours includes the total hours during which the employee carries out or performs the activities of his or her work at the employee’s place of employment or is required by his or her employer to be available for work there. It accepted the details of the working day as outlined by the respondent employer. However, it noted that the employee was required to be in attendance during the break periods between journeys as he was in charge of the bus at such times. It therefore determined that excluding a period of one hour per day for lunch, such periods came within the definition of working time. Having computed his working hours, it decided that he was paid €6.52 per hour and was therefore entitled to recover arrears in the amount of €9,324.33 and the decision of the RC was varied in this respect.


Comment

This case is notable for the failure of the respondent employer to provide written terms of employment to the complainant. Had this been done, it would at least have clarified what the employer considered to be and not to be working hours, though it is still questionable whether this would have sufficed to successfully defend the employee’s subsequent claim.


2. Case Name and Reference: Bailey T/A Finesse Beauty Salon and Farrell (HSC/09/23, Determination No. HSD104, August 11th, 2010)

Court or Tribunal: Labour Court

Legislative Reference: Safety, Health and Welfare at Work 2005

Jurisdictions/Subject Matter: Pregnancy, a request for reduced hours of work and alleged penalisation.

In this case, the complainant was employed as a beauty therapist at the respondent’s salon. She claimed that in May 2008, she notified the respondent that she was pregnant and because of her previous medical history involving two ectopic pregnancies, she verbally sought a reduction in her working hours until her maternity leave was due to begin. She claimed that the respondent rejected this request leaving her with no option but to resign from her job. She alleged that this amounted to penalisation for raising a health and safety concern under Section 27 of the Safety, Health and Welfare at Work Act 2005 and brought a complaint to a Rights Commissioner (RC). The RC upheld her complaint and awarded her compensation in the amount of €5,000. The respondent employer appealed this decision to the Labour Court and the complainant also appealed on the basis that the compensation awarded was inadequate.

During the course of the appeal, the respondent took issue with the complainant’s contention that she had sought a reduction in hours of work in May 2008. It also submitted that although the complainant had notified the respondent of her pregnancy in May and had indicated that it might be at risk, no medical evidence was submitted to the respondent to support this. The respondent then received a letter from the (then) Department of Social and Family Affairs on June 10th seeking a statement of earnings so as to assess the complainant’s potential right to a social welfare payment. From this letter, it gathered that the complainant had ‘jumped the gun’ and informed the Department that she would be working reduced hours without checking with her employer.

It subsequently received a letter two days later from the complainant requesting short time work but still with no supporting medical evidence. It was not until June 16th that a letter was received from the complainant’s medical advisors supporting the request for reduced hours of work. The complainant followed this up on June 17th with an undated note referring back to her alleged request for short time work six weeks earlier. The respondent denied that such a request had been made and informed the complainant at this point that she could not accommodate the request for reduced hours purely for business reasons. The complainant then went on sick leave and never returned to work. She subsequently requested her P45 as she considered herself to have been dismissed.

The complainant reiterated that the respondent was aware at an early stage of her need to restructure her working hours but had failed to act. She submitted that she had proposed working three long days as she was mindful of the pressure the salon was under at that time of year. She claimed to know nothing of the letter from the Department and denied any suggestion that she was attempting to determine her own hours. She said that she was merely acting on the best medical advice. Her representative submitted that the respondent had breached its statutory obligations under health and safety legislation in failing to carry out a risk assessment when it was informed of the complainant’s pregnancy. It was suggested that the respondent had ample time to consider alternative employment arrangements but had simply presented the complainant with a scenario of full work or no work. This amounted to penalisation and entitled her to conclude that she had been dismissed as a result of her request for reduced hours.

The Court again repeated that its jurisdiction under Section 27 of the 2005 Act is very narrow. For a complaint to succeed, an employer must penalise or threaten to penalise an employee for making a representation or complaint specifically in connection with a health and safety matter. In this case, it had to consider whether or not the respondent’s refusal to accommodate the complainant’s request for reduced hours supported by medical evidence on June 17th was such.

It noted that S.27 provides that any act or omission by an employer that “affects, to his or her detriment, an employee with respect to any term or condition of employment” may constitute penalisation. A refusal to accommodate an employee with reduced working hours could therefore be penalisation but it would have to have resulted primarily from a complaint or representation made by the complainant about a matter relating to safety, health and welfare at work. The Court decided that there were no grounds for reaching such a conclusion in this case. The respondent was running a small salon at her busiest time of year and another employee was soon due to go on maternity leave. Her decision to refuse the request was therefore for business reasons and not related to a health and safety matter raised by the complainant. Even if such refusal was unreasonable, it still did not amount to penalisation. The decision of the RC was set aside and the appeal upheld.


Comment

It is worth noting in this case that the complainant also brought a separate claim under the Maternity Protection Acts 1994-2004 based on the same set of facts. The decision of the Labour Court merely mentions this but does not give any indication of the outcome, if any. It is however open to question whether the employer might succeed in escaping liability under this broader heading, particularly if there was a failure to carry out the appropriate risk assessment as required by regulations, once the respondent became aware of the complainant’s pregnancy in May 2008.