The Organisation of Working Time Act 1997 (OWT Act) continued to be a prominent source of appeals from decisions of Rights Commissioners to the Labour Court in 2012, with almost one hundred appeals being disposed of during the course of the year.

The OWT Act is a difficult and technical piece of legislation, with a wide and disparate set of provisions providing minimum employment rights including the areas of working hours, premium for Sunday working, rest between periods of work, rest breaks and access to annual leave and public holiday entitlements. An important principle that employers must bear in mind with this legislation is the necessity to keep records of compliance for at least three years under the terms of Section 25 (1).

In 2001, a set of regulations - the Organisation of Working Time (Prescribed Forms and Exemptions) Regulations, Statutory Instrument 473/2001 – provided further detail of the form in which these records must be kept. Subsection (4) of Section 25 explicitly states that where an employee brings a complaint or complaints under the Act and the employer fails to keep records of compliance, the onus will be on the employer to show that the Act was complied with. Clearly, the absence of records makes it very difficult for any employer to discharge this onus.

The three cases reviewed in today’s mail illustrate the diversity of legal issues that can arise under this Act. Each of these appeals went against the employer concerned. The first case focuses on the extension of time limits for the purpose of claims and the critical question of the onus of proof where the respondent employer does not keep records of compliance with the Act. The second concerns the need for proper employee consultation by employers where annual leave practices are being changed and the third focuses on the need for employers to give sufficient notice to employees where hours of work are being changed. These cases are respectively:

* Circus Gerbola Limited and Chtabbou
* Office of Public Works and a Group of Workers
* Stobart (Ireland) Driver Services Ltd and O’Riordan


1. Circus Gerbola Limited and Chtabbou (WTC/11/64, Determination No.DWT 12182, 27th December 2012).

The claimant in this case was a Moroccan national recruited in 2003 by way of a work permit to work for the respondent’s circus. His employment ended on 6th April 2009, following a dispute over his accommodation. On 21st July 2009 he initiated a claim under the OWT Act to a Rights Commissioner (RC) alleging a number of breaches, namely:

* failure to provide adequate rest breaks and weekly rest;
* failure to pay a premium for Sunday work;
* requiring him to work in excess of an average of 48 hours per week; and
* failure to provide paid annual leave and public holiday entitlement. (Note that this complaint was heard in tandem with a similar complaint made by a work colleague and both claimants also brought claims that their employer had infringed the terms of the National Minimum Wage Act 2000).

The RC found in his favour under the OWT Act on all but one ground; she did not accept that he worked in excess of 48 hours average per week. He was awarded €4000 in compensation. The respondent appealed this finding to the Labour Court and the claimant cross-appealed the maximum working hours' issue.

On appeal, the Labour Court first considered a preliminary issue of how far back into his employment the claimant could go in alleging contraventions of the legislation. Although the claimant maintained that his rights under the legislation had not been adhered to from the outset, Section 27 (4) of the Act makes it clear that a claim must be brought within six months of the alleged (or the latest) contravention.

The claim had been lodged on 21st July, some three and a half months after the termination of the claimant’s employment on 6th April. The Court found that the RC had correctly determined that only contraventions that had occurred in the six months prior to the presentation of the claim were ‘cognisable’ for the purposes of potential redress, i.e. between 22nd Jan and 21st July 2009. However, the RC had exercised her discretion to extend the cognisable period on grounds of reasonable cause by a further six months, thus encompassing infringements back to July 22nd 2008. The respondent argued that his extension was not justifiable.

The Court examined its previous determinations on the issue of reasonable cause, in particular its decision in the case of Cementation Skanska and Carroll (WTC 033, 28th October 2003), that the claimant must show that there are reasons which both explain the delay and afford a reasonable excuse for it. In turn, there must be a causal link between the circumstances cited and the fact of delay.

While ignorance of one’s legal rights is generally not an excuse for failing to present a claim on time, the Court concluded that this case was exceptional. The claimant alleged that the respondent retained his passport and that he was fearful of the consequences of complaining about his working conditions. He had a poor command of English and little contact with persons outside the circus community and so had no realistic opportunity to inform himself of his statutory employment rights. It was only when he made contact with the Migrant Rights Centre that he became aware of his entitlements. In these circumstances, the Court was satisfied that there was reasonable cause for extending time by a further six months (though it noted that the RC had the power to extend it by 12 months).

Turning to the substantive issue of the alleged infringements of the Act, the Court reiterated its position that the claimant must first bring evidence to support ‘a stateable case of non-compliance’ with the Act. The respondent must then put its records of compliance under S.25 in evidence. If these are not produced, it will be for the respondent to establish on other credible evidence that the Act was complied with.

In this case, the respondent acknowledged that it had not kept the requisite records and so the burden of proof fell upon it to show that the complaints of the claimant were not well founded and that it had complied. The Court noted that there were considerable conflicts of evidence between the respondent on the one hand and the claimant and a corroborating witness on the other, in relation to both hours worked and duties performed. However, one salient fact was admitted by the respondent; the claimant never received any paid annual leave during his employment. On balance therefore, the Court was not satisfied that the respondent had rebutted the ‘presumption of non-compliance’.

On the question of the breach of the provisions relating to maximum hours, the Court did not accept that the claimant worked the average of 77 hours per week he had claimed. However, it did conclude doing the best it could with the available evidence that he worked 50 hours on average per week. Accordingly it found that the rule on maximum hours had been breached. It therefore increased the award of compensation to €4500. Finally, it should also be noted that the claimant was also awarded almost €23,000 in respect of breaches of the National Minimum Wage Act 2000.


2. Office of Public Works and a Group of Workers (WTC/12/146, Determination No. DWT 12172, 29th November 2012).

Section 20 (1) of the OWT Act provides that the times at which annual leave is granted to an employee shall be determined by his or her employer. However, the employer concerned must take into account the need for the employee to reconcile work and any family responsibilities and the employee’s opportunities for rest and recreation. An employer must also consult the employee (or his/her trade union, if any) at least one month before the relevant period of annual leave is due to begin.

In this case, the respondent employer decided to change a practice of over 20 years by obliging employees working in its Furniture Division to take annual leave on the working days between St Stephen’s Day and New Year’s Day, i.e. 28th, 29th and 30th December. The respondent maintained that it had first posted an ‘Office Notice’ in July 2011 notifying the change of practice and had followed it up to the 10 staff concerned with an email and a notice placed on the notice board. The workers argued that they were only informed of this change in December 2011 and that this amounted to a breach of S.20 (1) which obliged them to use up three days of their annual leave entitlement. A Rights Commissioner (RC) found in their favour and awarded each of them €300 in compensation. The respondent appealed this finding to the Labour Court.

On appeal, the Court noted that there were two separate notice boards in the workplace concerned; one for office and technical staff and the other for industrial grades. The workers union had argued that the July 2011 notice was placed on the wrong notice board and this was not rectified until mid-December 2011, less than one month before the annual leave was due to be taken.

It also submitted that the wording of the notice arguably excluded industrial staff such as the claimants who already had existing arrangements in place. Finally, it argued that the notice when it was provided did not amount to consultation in any case but merely informed the workers of the change. The Court found on the balance of probabilities that the July notice was posted on the wrong board and that the respondent had neither notified nor consulted with the claimants around the timing of annual leave in the manner provided for in S.20 (1) of the OWT Act. The decision of the RC was therefore affirmed.


3. Stobart (Ireland) Driver Services Ltd and O’Riordan (WTC 12/148, Determination No. DWT 12170, 28th November 2012).

Section 17 (1) of the OWT Act obliges an employer, where neither a contract of employment or other agreement specifies the normal or regular starting and finishing times of work, to provide an employee with at least 24 hours' notice of such times before the day or days concerned. Section 17 (2) provides for a similar 24 hour notice obligation where the employer proposes that an employee work additional (or overtime) hours. Finally, Section 17 (4) allows an employer, where circumstances arise that could not reasonably have been foreseen, to alter the hours of work set out in the relevant notification.

In this case, the claimant was employed as a truck driver by the respondent. He alleged that the respondent breached the terms of Section 17 of the Act in that it failed to provide him with adequate notice of a change of working hours. When he refused to comply with his employer’s instruction to work at an earlier time, he alleged that he was penalised by his employer in terms of Section 26, in that he was subjected to the employer’s disciplinary procedure because he refused to comply with a breach of the legislation.

A Rights Commissioner (RC) dismissed his claims and this finding was appealed to the Labour Court. In his evidence, the claimant stated that on 19th July 2011 when he was resting between shifts, he received a phone call from a representative of his employer instructing him to commence work at 6.00 am the following morning. In response, the claimant pointed out that he was not due to work until at least 18 hours later and he asked why he was being called in early. He was told that the caller did not know why he was being called in early but he was instructed to come in nonetheless. Thus, he argued that no exceptional circumstances to justify his attendance were provided but he was still subjected to the respondent’s disciplinary procedure.

The respondent in turn submitted that the claimant was already on notice that his work pattern was not fixed and that he might be called upon to vary his shift pattern to meet the needs of the business. An unforeseen situation arose and Section 17 (4) allows for this. Thus, it maintained that it was entitled to process the refusal of the employee to report for work through its disciplinary procedure.

The Court firstly noted that it was accepted by both parties that 24 hours' notice of the relevant hours of work was not given by the respondent, so that it had to rely on the provisions of S.17 (4) as a justification. The Court took the view that the onus was therefore on the respondent to make out the grounds of defence provided by that sub-section. However, it noted that the respondent expressly stated in its evidence that it could not recall the exceptional circumstances that might justify the late notice. Thus, the Court concluded that it could not rely on the defence set out in S.17 (4). By extension, it decided that the claimant was entitled to rely upon S.26 to protect himself from penalisation for refusing to co-operate with a breach of the Act.

The decision of the RC was therefore set aside and the respondent was ordered to rescind any sanction imposed upon the complainant and remove it from his personnel record and to comply in future with the provisions of the Act in respect of scheduling of hours. The claimant was also awarded €5000 in compensation.

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