Noel Recruitment (Ireland) Ltd v Arturas Glemza (Represented by Richard Grogan & Associates, Solicitors)

 
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Labour Court (Ireland)

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WTC/17/57

DETERMINATION NO.DWT182

ADJ-00006622 CA-00008879-002/005/006

PARTIES:
Noel Recruitment (Ireland) Limited
and
Arturas Glemza (Represented by Richard Grogan & Associates, Solicitors)
SUBJECT:
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1. Appeal of Adjudication Officer's Decision No: ADJ-00006622.

BACKGROUND:
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2. An Adjudication Officer hearing took place on 20 April 2017 and a Decision was issued on 30 August 2017.

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The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 12 September 2017, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 14 December 2017. The following is the Determination of the Court:

DETERMINATION:
Introduction
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This is an appeal by Arturas Glemza (Complainant) against decision ADJ-00006633 of an Adjudication Officer in his complaint against his former employer Noel Recruitment (Ireland) Limited (the Respondent). The complaint was made pursuant to the Organisation of Working Time Act 1997 (the Act). The Adjudication Officer found that the complaint was not well founded.

Background
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The Complainant was employed by the Respondent between the 24 th May 2016 and 22 nd January 2017. The Respondent is an Employment Agency who placed the Complainant with one of their clients for the duration of his employment with them. The Complainant was employed on a Permanent Contract. The Complainant is claiming that the payment of his Annual leave and Public Holidays did not take into account the 45 minutes he spends travelling each day worked when he had to travel between his home and the depot where he worked. The Complainant is relying on the “Tyco” case to argue that this time should be considered working time. The Complainant is also claiming a Sunday premium for the 6 Sundays he worked during the cognisable period. He worked an 8hour shift on each occasion. The complaint was lodged on the 19 th December 2016. The cognisable period is 20 th June 2016 to 19 th December 2016.

Complainant's case.
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The Complainant was placed by the Respondent with one of its clients for the duration of his employment. Each day he worked he was required to travel to that workplace. He does not dispute that he was in the same workplace for the duration of his contract. It is the Complainants case that in line with the decision of the Court of Justice of the European Union (CJEU) in the case of C-266/14 Federación de Servicios Privados del sindicato Comisiones obreras (CC.OO.) v Tyco Integrated Security SL and Tyco Integrated Fire & Security Corporation Servicios SA his time spent travelling to work should be considered working time. In particular, he relied on paragraph 5 on page 4 of the Judgement which states

“… as the Advocate General observed in point 38 of his Opinion, the journey of workers, who are employedin a job such as that at issue in the main proceedings, to go to the customer designated by their employer, is a necessary means of providing those workers technical services to those customers. Not taking those journeys into account would enable an employer such as Tyco to claim that only the time spent carrying out the activity of installing and maintaining the security system falls within the concept of ‘working time’ within the meaning of point (1) of Article 2 of Directive 2003/88, which would distort that concept and jeopardise the objective of protecting the safety and health of workers and paragraph 7 where the Court went on to say “In those circumstances, workers in a situation such s that at issue in the main proceedings must be regarded as carrying out their activity or duties during the time spent travelling between home and customers”

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On that basis, the representative of the Complainant contended...

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