DWT15122

The Rights Commissioner decided that

• ‘the claim is not well founded and falls’

Section 12

The Claimant contended that she was not always in a position to avail of breaks at work.

The Respondent contended that the Claimant was entitled to and received the breaks required by the Act.

The Claimant, in evidence before the Court, confirmed that she was aware, from the Company Handbook, of her entitlement to breaks and was aware that she was required to notify the Respondent within one week of any occasion when she did not receive the required break(s). She also confirmed, in evidence before the Court, that she decided on occasion not take her breaks in order that she might finish earlier on the day. She stated to the Court that while she signed in each day there was no requirement for her to notify her supervisor of the conclusion of her working day or to make or sign any record of her time of conclusion.

The Respondent contended that a record was kept by the Claimant’s supervisor of the Claimant’s starting and finishing time each day. The Respondent contended that those records were compiled on the basis of the Claimant’s interactions with the Supervisor at start and finishing times each day.

The Respondent contends that the provisions of Regulation 5(1)(a) of S.I. No. 473/2001 – Organisation of Working Time (Records)(Prescribed Form and Exemptions) Regulations 2001 mean it is exempt from having to keep records of rest breaks

Section 5 of S.I. No. 473/2001 in relevant part provides as follows:

• 5. (1) For the purposes of these Regulations and subject to paragraph (2), the following classes of employer are exempt, by virtue of section 25(2), from the obligation to keep records of rest breaks —

  (a) employers who have electronic record-keeping facilities such as flexi-time or clocking-in facilities, and

  (b) employers who have manual as opposed to electronic record-keeping facilities and who are required to keep records in accordance with Regulation 4.

  (2) The exemption under paragraph (1) shall only apply to an employer if he or she complies with the following conditions —

  (a) the employer notifies in writing each employee of the rest periods and breaks referred to in sections 11, 12 and 13 or, in case of the non-application of one or more of those sections (by virtue of regulations referred to in section 4(3), a collective agreement or a registered employment agreement referred to in section 4(5), or an employment regulation order referred to in section 4(6)) of the terms of such regulations, collective agreement, registered employment agreement or employment regulation order and, in particular, of the requirement contained in section 6(1),

  (b) the employer puts in place, and notifies in writing each employee of procedures whereby an employee may notify in writing the employer of any rest period or break referred to in sections 11, 12 and 13 of the Act to which such employee is entitled and was not able to avail himself or herself of on a particular occasion and the reason for not availing of such rest period or break,

  and

  (c) the employer keeps —

  • (i) a record of having notified each employee of the matters provided for in paragraph(a),

    (ii) a record of having notified each employee of the procedures provided for in paragraph (b), and

    (iii) records of all notifications made to him or her by each employee in accordance with those procedures.

In the instant case the Court notes that no electronic record-keeping facilities were functioning in respect of the Claimant during her period of her employment.

Section 25(4) of the Act provides, in effect, that where an Employer fails to keep records in respect of his or her compliance with a particular provision of the Act in relation to an employee, in proceedings before the Court the onus of proving compliance with that provision lies with the employer. In this case the Court is satisfied that the Employer has failed to maintain adequate records to show that the Act was complied with in respect of the Complainant and thus carries the burden of rebutting the evidence given by the claimant.

The Court finds that the Respondent has not put before the Court clear evidence that the Claimant availed of her breaks during her employment.

The Claimant confirmed in evidence to the Court that notwithstanding that she was made aware of her entitlement to breaks and the requirement upon her to notify the Respondent within one week of any occasion where she had been unable to avail of her breaks, she made no such notification to the Respondent other than on one occasion four weeks before termination of her employment. The Claimant also confirmed to the Court in evidence that she decided on occasion to forego her breaks in order that she might finish earlier on the day.

The Court finds that the Respondent has not provided the court with appropriate records of the Claimant’s breaks. The Court must therefore conclude that on an unspecified number of occasions the claimant did not avail of her entitlement to breaks.

Section 13

The Claimant contended that on two occasions she was required to work on seven consecutive days and on one occasion she was required to work on eleven consecutive days. The Claimant acknowledged to the Court that on each occasion she was afforded her appropriate rest periods as required by Section 13 of the Act but for the Respondent’s failure to afford her a period of daily rest immediately preceding those rest periods.

The Respondent contends that on the occasion of a seven day period of consecutive working from 28th August to 3rd September 2014 the Claimant was afforded the required daily rest period prior to two rest periods. The Respondent contends that on the other occasion of seven days consecutive working and on the occasion of eleven consecutive days working the appropriate 24 hour rest periods were afforded to the Claimant.

The Court finds that on two occasions the appropriate daily rest was not afforded to the Claimant immediately preceding a 24 hour period of rest.

Section 14.

The Claimant contends that the Respondent was in breach of Section 14 of the Act for the period of the Claimant’s employment in that a premium of five cents per hour for every hour worked as paid to the Claimant could not be considered as reasonable compensation for being required to work on a Sunday as required by the Act.

The Respondent contends that the Claimant was paid a premium in respect of her being required to work on a Sunday and that that premium was reasonable and satisfied the requirements of Section 14(1)(b) of the Act.

Section 14 of the Act in relevant part provides

• 14.—(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,

The Claimant gave no view to the Court as to what she regarded as a reasonable within the meaning of section 14(1)(a) or (b) of the Act.

The Court finds that the premium of five cents per hour as paid to the Claimant in compensation for being required to work on Sundays was not reasonable within the meaning of the Act.

Section 17

The Claimant contended that she was regularly unable to complete her daily work at the time which had been notified to her by the Respondent. The Claimant contended that no notification of her finishing time was given to her on those occasions.

The Respondent contended that the Claimant was correctly notified each week of her starting and finishing times in the following week.

Section 25(4) of the Act provides, in effect, that where an Employer fails to keep records in respect of his or her compliance with a particular provision of the Act in relation to an employee, in proceedings before the Court the onus of proving compliance with that provision lies with the employer. In this case the Court is satisfied that the Employer has failed to maintain adequate records to show that the Act was complied with in respect of the Complainant and thus carries the burden of rebutting the evidence given by the claimant.

The Court finds that the Respondent has not put before the Court clear evidence that the Claimant each week finished her working day at the times which had been notified to her the previous week.

Section 20

The Claimant contends that on the occasion of her taking two days annual leave during her employment she did not receive her pay in respect of that leave in advance as required by Section 20(2)(a) of the Act.

The Respondent accepts that pay was not paid in advance of two days annual leave. The Respondent asserted that its practice in this matter was to the advantage of employees and was acceptable to other employees.

The Court finds that the Respondent did not, as required by the Act, pay the Claimant in advance in respect of two days leave.

Sections 19, 21 and 23

The Claimant clarified to the Court that her complaint with regards to Sections 19, 20 and 23 of the Act related to the Respondent’s failure to afford her entitlements to her in respect of two Public Holidays falling during her employment.

The Respondent contended that the Claimant had received her entitlements under the Act in respect of the two Public Holidays concerned. In particular the Respondent put before the Court records which demonstrated payment of an additional day’s pay to the Claimant in both cases.

The Court finds that the Claimant did receive her entitlements under the Act as provided for in Section 21(1)(d) in respect of the two Public Holidays concerned.

Determination

The Court, consequent on its findings as set out determines that the Respondent should pay a sum of €500.00 to the Claimant in compensation for the contraventions of the Act which the Court found to have occurred. The Decision of the Rights Commissioner is set aside and substituted with this Determination.

Signed on behalf of the Labour Court



Kevin Foley
16th November 2015______________________
SCDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.