DWT1467

Background

The Respondent operates a restaurant and bar located in South County Dublin. The Complainant was employed by the Respondent as a chef from 4th April 2013 to 7th January 2014. The Complainant alleges that, in the course and in respect of his employment, the Respondent infringed Sections 11, 12, 14 and 17 of the Act. The Respondent disputes the complaints.

Section 11

Section 11 of the Act states

11.An employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer.

The Complainant states that he was not afforded a daily rest period of 11 consecutive hours in each period of 24 hours during which he worked for his employer.

The Respondent states that the Complainant’s normal daily working hours commenced in and around noon and that his shift normally finished between 9 pm and 10:30 pm. It argues that the Complainant therefore received a rest period of not less than 11 consecutive hours in each period of 24 hours during which he worked for the Respondent.

It states that it's records disclose that on one occasion, September 6/7 2013, the Complainant commenced work at 8:58 a.m. and as a consequence he did not receive a rest period of 11 consecutive hours in that period of 24 hours.

In that regard it relies on Section 5 of the Act which states

• 
  5.Without prejudice to Section 6 , an employer shall not be obliged to comply with Section 11, 12, 13 , 16 or 17 where due to exceptional circumstances or an emergency (including an accident or the imminent risk of an accident), the consequences of which could not have been avoided despite the exercise of all due care, or otherwise to the occurrence of unusual and unforeseeable circumstances beyond the employer's control, it would not be practicable for the employer to comply with the Section concerned.
  
  

It further argues that it amounted to a technical breach of the Act and was minor in terms of the period of time involved, 20 minutes, and that it was a unique occurrence. It argues that in those circumstances it would not be “just and equitable” to award any compensation for such an infringement.

Findings of the Court

It is common case that the Respondent infringed Section 11 of the Act in respect of the Complainant’s employment on one occasion only and for a period of 20 minutes.

The Respondent relies on the exemption set out in Section 6 of the Act. The Court finds that while the circumstances were “unusual” they were not unforeseeable and or beyond the employer’s control. No explanation was advanced by the Respondent as to why it would not have been practicable for it to schedule the Complainant to start 20 minutes later than it did.

Accordingly, the Court determines that Section 6 does not apply in this case.

The Court notes however that the incident was isolated and indeed unique. In those circumstances the Court finds that the level of compensation it awards under the Act should reflect the isolated nature of the infringement. Equally the Court finds that the Complainant is entitled to an 11 hour rest period in any period of 24 hours and he was denied his entitlement on this occasion.

In all the circumstances the Court finds that a measure of compensation proportionate to the isolated nature of the infringement is appropriate.

Determination

The Court determines that the complaint is well-founded. The Court orders the Respondent to pay the Complainant compensation in the sum of €100.00.

The Court so determines.

Section 12

Section 12 of the Act states

• (1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

  (2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in Subsection (1) .

  (3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under Subsection (2) shall be more than 30 minutes (but not more than 1 hour).

  (4) A break allowed to an employee at the end of theworkingday shall not be regarded as satisfying the requirement contained in Subsection (1) or (2) .

The Respondent argues that the Complainant’s entitlement to statutory breaks is set out in the Company Handbook. It submits a notice advising staff of their entitlement to breaks that it says was placed on notice boards to which the Complainant had access. It further states that the Complainant was afforded breaks in accordance with the statute. It argues that the Complainant never raised a grievance regarding breaks with it. It argues that the Complainant was never “prevented” from taking his required breaks during his shifts. It notes that he availed of a number of smoke breaks that taken together exceed the total statutory break times to which he was entitled. It states that it did “not require” the Complainant to work in excess of specific period without taking a break and argues that it therefore did not infringe Section 12 of the Act. It argues that the Complainant has not produced any evidence in support of his contention that he was required to work in excess of specific periods of time without a break and accordingly has not established primary facts upon which he seeks to rely in this complaint.

Findings of the Court

The Court notes that Section 25 of the Act places an obligation on an employer to maintain records that demonstrate compliance with the Act.

• (1) An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this Act [and, where applicable, the Activities of Doctors in Training Regulations] are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making.

• (4) Without prejudice to Subsection (3) , where an employer fails to keep records under Subsection (1) in respect of his or her compliance with a particular provision of this Act [or the Activities of Doctors in Training Regulations] in relation to an employee, the onus of proving, in proceedings before a Rights Commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer..

The Complainant states that he did not receive breaks as required by the Act.

The Respondent relies on the Staff Manual, a notice posted on the notice board advising staff of their statutory entitlements and on the smoke breaks afforded to the Complainant as evidence that there was a culture of compliance with the Act and an environment in which breaks could and were in fact taken. It further relies on the fact that the Complainant availed of a free meals facility that was available to him each day and argues that this demonstrates that as he was afforded an opportunity to consume those meals it has discharged the burden of proving, on the balance of probabilities, that it complied with the Act.

The Staff Manual in relevant part contains the following provision under the heading Meal, Tea and/or Coffee Breaks

The person in charge of your department decides when these breaks are to be taken, but meal breaks usually will be between the third and fifth hour of your coming on duty or, after a break (other than a tea and/or coffee break), coming back to duty as the case may be”.

You will receive a tea/coffee break of 15 minutes (unpaid) after 4.5hrs work. You will also receive a meal break of 30 minutes (unpaid) after 6 hours work which may include the first 15 minute break. Breaks may not be taken at the End of your shift.”

The Respondent seeks to rely on the Staff Manual and asserts that it makes provision for breaks from work that meet it's obligations under the Act. An examination of the Manual discloses however that the responsibility for allocating breaks lies with the “person in charge of your department”. The Respondent told the Court that the person in charge could not confirm that he discharged that duty towards the Complainant. Accordingly, the Court finds that the Respondent cannot rely on a manual with which it did not itself comply. Moreover, by making the taking of breaks subject to the permission of the “person in charge” the Respondent was in effect requiring the Complainant to work until he was directed to take breaks. If he was not so instructed to take breaks consistent with Section 12 of the Act he was in effect being required to work contrary to the express terms of that Section.

The Court concludes therefore that the Staff Manual does not avail it in this case.

The Court takes a similar view of the notice published by the employer advising staff of their entitlement to statutory breaks. That notice was itself subject to the terms of the Staff Manual. Accordingly, that notice does not avail the Respondent in this case.

The Court notes the smoke breaks permitted to the Complainant. Those breaks do not of themselves meet the Respondent’s statutory obligations in this case.

Finally, the Court notes that the Complainant availed of free meals each day. The Court finds that, on balance, it is likely that the Complainant was afforded the opportunity to consume those meals and accordingly was afforded a meal break in order to do so. However, the Court is not satisfied that this discharges the Respondent’s obligation of proving compliance with the Act. However, it does indicate that there was a culture in which the Complainant was provided with a meal and a period of time in which to consume that meal. The Court has taken this into account in determining the extent to which the Respondent complied with Section 12 of the Act.

The Court finds that the Complainant may not have received his precise statutory entitlement while working for the Respondent but finds that he availed of breaks from work that broadly equate with those that are provided for in the Statute. However, broad equivalence is not sufficient to demonstrate compliance with the Act but can be taken into consideration when determining the remedy in a particular case.

Determination

The Court determines that the Complaint is well-founded and awards the Complainant compensation in the sum of €500.00.

Section 14

Section 14 of the Act states

(1) An Employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her Employer for being required so to work by the following means, namely—

• • (a) by the payment to the Employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or

    (b) by otherwise increasing the Employee's rate of pay by such an amount as is reasonable having regard to all the circumstances, or

    (c) by granting the Employee such paidtimeoff from work as is reasonable having regard to all the circumstances, or

    (d) by a combination of two or more of the means referred to in the preceding paragraphs.

  (2) Subsection (3) applies to an Employee where the value or the minimum value of the compensation to be provided to him or her in respect of his or her being required to work on a Sunday is not specified by a collective agreement.

  (3) For the purposes of proceedings under Part IV before a Rights Commissioner or the Labour Court in relation to a complaint that this Section has not been complied with in relation to an Employee to whom this Subsection applies (“the first-mentioned employee”), the value or the minimum value of the compensation that a collective agreement for thetimebeing specifies shall be provided to a comparable Employee in respect of his or her being required to work on a Sunday shall be regarded as the value of compensation to be provided under this Section to the first-mentioned Employee that is reasonable having regard to all the circumstances:

  • 
    Provided that if each of 2 or more collective agreements for thetimebeing specifies the value or the minimum value of the compensation to be provided to a comparable Employee to whom the agreement relates in respect of his or her being required to work on a Sunday and the said values or minimum values are not the same whichever of the said values or minimum values is the less shall be regarded, for the purposes aforesaid, as the value of compensation to be provided under this Section to the first-mentioned Employee that is reasonable having regard to all the circumstances.
  
  (4) Unless the fact of such a value being so specified has come to the notice of the Rights Commissioner or the Labour Court, as the case may be, it shall be for the person who alleges in proceedings referred to in Subsection (3) that a value of compensation of the kind referred to in that Subsection is specified by a collective agreement mentioned in that Subsection to show that, in fact, such a value is so specified.

  (5) In Subsection (3) “comparable employee” means an Employee who is employed to do, under similar circumstances, identical or similar work in the industry or sector of employment concerned to that which the first-mentioned Employee in Subsection (3) is employed to do.

  (6) References in this Section to a value or minimum value of compensation that is specified by a collective agreement shall be construed as including references to a value or minimum value of compensation that may be determined in accordance with a formula or procedures specified by the agreement (being a formula or procedures which, in the case of proceedings referred to in Subsection (3) before a Rights Commissioner or the Labour Court, can be readily applied or followed by the Rights Commissioner or the Labour Court for the purpose of the proceedings).

  It is common case that the Complainant was required to work on Sunday. His complaint is that the fact of his or her having to work on that day was not otherwise taken account of in the determination of his pay and he was not compensated by his Employer for being required so to work by any or any combination of the means set out in the Act.

  The Respondent argues that, as the Complainant was required to work on Sunday, he had access to free meals on each day on which he worked and was thereby paid an allowance in respect of the work he performed on Sunday.

  Findings of the Court

  The net issue for the Court to decide is whether access to free meals meets the obligations set out in Section 14 of the Act.

  The Respondent argues that the meals had value and must therefore be considered an allowance for the purpose of the Act. The Respondent disputes this.

  The wording of the Act is clear. It requires the payment of a sum of money, either by way of an allowance or by way of an increase in pay, or by the granting of additional paid time off. It does not provide for the provision of access to a benefit in kind determined by the employer as a substitute for the payment of an increase in pay or the payment of an allowance or additional paid time off.

  In this case the Respondent is seeking to substitute a benefit in kind, access to free meals, for the payment of an allowance or the granting of additional time off. Such a substitution is not provided for in the Act.

  Accordingly, the Court finds that the requirement to work on Sunday was neither taken into account in determining the Complainant’s pay or compensated for by any of the means set out in Section 14 of the Act. The Court accordingly finds that the complaint is well-founded.

  Determination

  The Complaint is well-founded. The Court orders the Respondent to pay the Complainant compensation in the sum of €2,000.00.

  Section 17

  Notification of Overtime

  Section 17 of the Act states

  (1) If neither the contract of employment of the employee concerned nor any employment regulation order, registered employment agreement or collective agreement that has effect in relation to the employee specifies the normal or regular starting and finishingtimes of work of an employee, the employee's employer shall notify the employee, subject to Subsection (3) , at least 24 hours before the first day or, as the case may be, the day, in each week that he or she proposes to require the employee to work, of thetimes at which the employee will normally be required to start and finish work on each day, or, as the case may be, the day or days concerned, of that week.

  (2) If the hours for which an Employee is required to work for his or her Employer in a week include such hours as the Employer may fromtimetotimedecide (in this Subsection referred to as “additional hours”), the Employer shall notify the Employee, subject to Subsection (3) , at least 24 hours before the first day or, as the case may be, the day, in that week on which he or she proposes to require the Employee to work all or, as the case may be, any of the additional hours, of thetimes at which the Employee will be required to start and finishworkingthe additional hours on each day, or, as the case may be, the day or days concerned, of that week.

  (3) If during the period of 24 hours before the first-mentioned or, as the case may be, the second-mentioned day in Subsection (1) or (2) , the Employee has not been required to do work for the Employer, thetimeat which the Employee shall be notified of the matters referred to in Subsection (1) or (2) , as the case may be, shall be not later than before the last period of 24 hours, preceding the said first or second-mentioned day, in which he or she has been required to do work for the Employer.

  (4) A notification to an Employee, in accordance with this Section, of the matters referred to in Subsection (1) or (2) , as the case may be, shall not prejudice the right of the Employer concerned, subject to the provisions of this Act, to require the Employee to start or finish work or, as the case may be, to work the additional hours referred to in Subsection (2) attimes other than those specified in the notification if circumstances, which could not reasonably have been foreseen, arise that justify the Employer in requiring the Employee to start or finish work or, as the case may be, to work the said additional hours at thosetimes.

  (5) It shall be a sufficient notification to an Employee of the matters referred to in Subsection (1) or (2) for the Employer concerned to post a notice of the matters in a conspicuous position in the place of the Employee's employment.

  The Complainant states that he his hours of work were not set out in his contract of employment and consequently he was not aware of his start and finish times from day to day. He states that he was required to work until the restaurant closed and that this time was variable depending on the volume of business from day to day. He states that was entitled to notification of his start and finish times and that failing that he was entitled to 24 hours’ notice of his commencement and finish times in accordance with Section 17 of the Act.

  The Respondent states that the Complainant’s hours for the following week were notified to him each Sunday at 3 pm and that these were conveyed to him directly if he was on the premises and if not he was phoned at that time with the details of his roster by another Employee. It argues that his hours were consistent. He commenced work at noon and finished sometime between 9pm and 10:30 pm . The Complainant was aware that the restaurant closed at 10:00 p.m. with final orders to the kitchen a little earlier than that. It took some time for the restaurant to clear and this depended on the number of patrons on any night. However, that would normally be no later than 10:30 p.m. On less busy nights the Complainant was released earlier than that.

  The Respondent submitted records of the Complainant’s start and finish times. These disclose that the Complainant’s normal finish time was sometime between 10:00 and 10:35 each night. On three occasions he was required to work beyond that time but not later than 11:15 pm on any occasion.

  The Respondent argues that the needs of the business require a degree of flexibility regarding the Complainant’s finish time but that the there is a well-established and consistent pattern of a finish time between 10:00 and 10:30 p.m. consistent with the Restaurant’s closing time.

  Findings of the Court

  Section 17 of the Act requires that an Employer must notify an Employee of the day, in each week that he or she proposes to require the Employee to work, and

  of thetimes at which the Employee will normally be required to start and finish work on each day, or, as the case may be, the day or days concerned, of that week.

  An Employee is further entitled 24 hours’ notice before the first day or, as the case may be, the day, in that week on which an Employer proposes to require the Employee to work.

  In this case the Respondent told the Court that it notified the Complainant at 3 p.m. each Sunday of the days on which he was required to work the following week. It further told the Court that the Complainant normally started work at noon each day on which he was scheduled to work. From this information it is clear that the Respondent did not give the Complainant 24 hours’ notice of the first day on which it proposed to require him to work on those weeks on which he was rostered to work on Monday.

  The Complainant’s start time was set at noon each day. The Complainant’s finish time was set by reference to the closing time of the Restaurant. The Respondent argues that it takes some time for the Restaurant to clear after final orders have been served and that as a consequence it cannot set the Complainant's finish time with exact precision. However, the evidence discloses that it normally takes 30 minutes after closing time for the Restaurant to clear. Accordingly, it is possible for the Respondent to set the Complainant’s finish time based on that evidence. Instead it has not set any finish time for the Complainant pleading that it cannot be precise.

  Such a refusal to set a finish time despite the evidence available to it does not meet the requirements of Section 17 of the Act. The Complainant is entitled to know in advance the time at which his shift will end. The evidence available to the Respondent indicates that this will be roughly 30 minutes after the restaurant closes. The Respondent must behave reasonably towards the Complainant and minimise the extent to which his finish time varies to enable him to plan his rest and working time to the maximum extent possible.

  Determination

  The Complaint is well-founded. The Court awards the Complainant compensation in the sum of €900.00.