FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : JURYS DOYLE HOTEL (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Mr O'Neill |
1. Appeal of Rights Commissioner's Recommendation IR11159/02/TB.
BACKGROUND:
2. The worker concerned was employed by the Hotel as a house assistant from 1985. In January, 2002, the worker was transferred to the staff restaurant as a canteen assistant. The terms and conditions on offer were those applicable to the position and were accepted by the worker. Some time later the worker took up the question of her shifts, arguing that she was working longer than the 39 hour week. In November, 2002, 11 months after commencing in the staff canteen, the Union commenced negotiations on the matter on her behalf.
The Union referred the matter to the Rights Commissioner for investigation and recommendation. The Rights Commissioner recommended as follows:-
"I recommend that the respondent pay the claimant €500 in respect of the difficulties she had experienced concerning her breaks.
I also recommend consistent with the staffing needs of the staff restaurant that the Company and the Union look again at the proposal in relation to attendance times".
The Company appealed the recommendation to the Labour Court on the 2nd of
September, 2003, in accordance with Section 13(9) of the Industrial Relations Act,
1969. A Labour Court hearing took place on the 20th November, 2003, the earliest date
suitable to the parties.
COMPANY'S ARGUMENTS:
3. 1. The Company rejects the recommendation of the Rights Commissioner that the claimant should be awarded €500 for the "difficulties she had experienced concerning her breaks".
2. It is the Company's position that the 'difficulties', if any, that the claimant experienced in taking her breaks were in no way facilitated by the Company.
3. The worker accepted the terms and conditions of the alternative position offered to her. Furthermore she accepted and understood the hours of work and break entitlements for that position. These were explained to her by the supervisor of the staff canteen area on commencing her position there.
UNION'S ARGUMENTS:
4. 1. The Union contend that the worker, who was working an 9 hour shift, was not receiving a 30-minute paid rest break which was her entitlement.
2. The worker was working 2½ hours longer per week than she should have.
3. The Rights Commissioner recommendation was reasonable in view of the circumstances involved and should be upheld.
DECISION:
The Court has considered the submissions of the parties. The Court is not convinced that the worker did not know and avail of her full entitlement to breaks. As a worker working a nine-hour shift she was entitled to 2 x 30 minutes unpaid and 2 x 15 minute paid breaks. She maintains that while she did receive the 2 x 30 minute unpaid breaks she did not receive her 2 x 15 minute paid breaks. While a formal notification of this was not relayed to the Company until 11 months after the claimant had commenced working this shift, it was stated to the Court by her representative that informal approaches were made to management. The worker had worked for the Company for 15 years in a previous capacity where she worked an eight and a half hour shift and was in receipt of 2 x 15 minute unpaid breaks.
The Company indicated to the Court that she was informed by the supervisor in the staff restaurant area that she was entitled to 2 x 30 minutes unpaid and 2 x 15 minute paid breaks and that there were 14 others working in that area also doing 9 hour shifts and they are receiving the appropriate breaks. The Union were of the view that the supervisor did not inform her of her entitlement to breaks and that the other 14 were also not getting the breaks. Neither side could prove whether the breaks were taken or not. However, the Company indicated that they introduced a system in February 2002 whereby workers were required to sign out for breaks.
In the correspondence attached to the Union's submission the Court noted a request from the Union for a shorter day for the claimant whereby her working day would finish at 5.30pm and not 6pm, with a morning break of half an hour paid (instead of 2 x 15 minutes) and an unpaid lunch break of half an hour (instead of an hour). This was not acceptable to the Company at the time. However, the new HR manager who joined the Company in July 2003 examined the shift working patterns and the Hotel has since introduced a shorter shift of 8.5 hours. The claimant's request to work a shorter day has now been granted.
The Court finds it inconceivable due to her length of service, her previous working pattern and the fact that the employer made provisions for her to have her breaks, that she did not take her breaks. She should have known to take them. Based on the evidence before the Court it does not accept that the breaks were not taken as claimed and therefore overturns the Rights Commissioner's recommendation.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
9th January, 2004______________________
M.G.
Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Madelon Geoghegan, Court Secretary.