FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : PAULINE MAGUIRE T/A TOFFEE & THYME (REPRESENTED BY JULIE BREEN) - AND - GERLI PARMAN (REPRESENTED BY PC MOORE AND CO) DIVISION : Chairman: Mr McGee Employer Member: Mr Grier Worker Member: Mr O'Neill |
1. Appeal against a Rights Commissioner's Decision r-052521-wt-07/MMG
BACKGROUND:
2. Toffee and Thyme consists of a take away, coffee shop and a bakery, in November 2005 it extended its opening hours into the evening and began to operate a night-time restaurant called "Soul". There are currently approximately 20 employees involved in the business and they work to a roster which is published each Thursday for the following week. The Claimant raised a number of issues after she resigned from her post as a waitress in the coffee shop, the matters were raised at a Rights Commissioner's hearing on 14th November, 2007, but due to the absence of the Claimant's legal representative the claims failed for want of prosecution.
The employee appealed the Rights Commissioner’s decision to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997 on the 27 March, 2008. The Court heard the appeal on the 11th November, 2008, the earliest date suitable to the parties.
APPELLANT'S ARGUMENTS:
3. 1. The Complainant worked a 35 hour week and was paid by cheque, if she worked in excess of this normal working week she did not get paid at time and a half, instead she got her basic hourly rate and was paid in cash.
2. The roster was regularly adjusted to suit the Management's needs, after the restaurant opened for night-time trade the Complainant did not receive her statutory 11 hour over night-time break.
3.While she worked as a waitress she did not get a regular break, if she was lucky she might get 5 minutes off when it was not too busy. When rostered to do kitchen work she was told by Management that she would not get any breaks at all.
RESPONDENT'S ARGUMENTS:
4. 1. It is the practice that all Employees get and take a 15 minute break in the morning and afternoon and a 30 minute lunch break which follows a set rota. The business therefore is not in breach of the Organisation of Working Time Act 1997.
2. At no time was the Claimant required to work more than 39 hours in any week, her wages were always paid by way of cheque. On occasion, if a member of staff was not paid until a Saturday, due to the roster, Management would cash their pay cheque for them.
DETERMINATION:
The Court has carefully considered the submissions of the parties, as well as the evidence given by the Claimant and the Respondent.
It was accepted by the Claimant that she did not work in excess of 48 hours per week. The question of the 11 hour rest period was not pursued by either side.
The Claimant alleged that the posted rota often changed and that she did not always get notice of having to work extra hours. The respondent testified that this did not happen.
The Claimant gave evidence that she usually got breaks when she first worked in the cafe but that she was told when working in the kitchen that "you eat on your feet" and that there were no breaks. The respondent testified that this did not occur and that all staff got morning and lunchtime breaks, with afternoon ones where appropriate.
There was an issue concerning hours worked and the method of payment, but the absence of records (other than payslips) in the prescribed form under the Act was one unresolved in evidence.
The respondent agreed that records were not kept in the prescribed form.
On the question of rest periods and overtime, the Court prefers, on balance, the evidence of the respondent and dismisses the appeal in regard to these Sections of the Act.
The Court finds that the respondent did not keep records in the prescribed form, cautions it to do so in the future and awards compensation of €300 for this breach.
The Court so determines and varies the decision of the Rights Commissioner accordingly.
Signed on behalf of the Labour Court
Raymond McGee
24th November, 2008______________________
JF.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.